
    State of Missouri, Defendant in Error, v. Joseph Rogers et al., Plaintiffs in Error.
    1. Evidence — Presumption—Courts.—All proper presumptions will be indulged in favor of the judgments of courts of record, and they must appear clearly erroneous before they will be disturbed.
    2. Criminal Practice — Recognizance.—Where a recognizance is taken by a judge who has authority to take such recognizance for the appearance of the party before the Circuit Court, it will be presumed that the necessary pre" liminaries were complied with, and that the proceedings were regular and proper.
    
      Error to Linn Circuit Court.
    
    Lander, for plaintiff in error.
   Wagner, Judge,

delivered tlie opinion of tlie court.

Tito only question presented, in this case, is as to the validity, of the recognizance. The record is certainly very im: perfect. It appears that Rogers was arrested in Linn county for larceny, and taken before a magistrate, where he confessed the crime whereof he stood charged. The magistrate committed him to jail, but it does not appear of record whether he was actually received by the jailor or not. Afterwards he appeared before Judge Smith, judge of the judicial circuit in which Linn county is situated, and entered into a recognizance with the plaintiff in error (Brownlee as security) in the sum of five hundred dollars, conditioned that he, the said Rogers, would appear at the next term of the Linn county Circuit Court to answer to an indictment to be preferred against him for “horse stealing,” and not depart the same without leave, &o. This recognizance was among the papers in the cause, but not marked “filed.” An indictment was regularly returned by the grand jury against the prisoner, who did not answer when called, but made default,, The recognizance was then duly prosecuted to forfeiture, and a scire facias issued thereon.

At the return term of the sci.fa. the plaintiff in error Brownlee appeared and filed his demurrer, alleging as his principal objections, that the principal (Rogers) being committed to jail by the justice, it did not appear of record, or otherwise, that said Rogers was ever discharged from the jail; that the recognizance was not filed in the office of the clerk of the Circuit Court; and that the writ does not show that he was charged with any offence known to the law. Other points were made, but they require no particular notice.

The court overruled the demurrer, and gave judgment for the State. The record shows enough to justify us in presuming that Judge Smith acquired jurisdiction, and that the prisoner was regularly released from jail on habeas corpus, and that the jailor, in all probability, in making his return to the writ, kept it, instead of delivering it over and filing it with the papers in the clerk’s office. It is shown that the justice issued his mittimus ordering him to be sent to jail on the 18th day of March, 1863 ; that he was brought before the judge and entered into recognizance on the 8th day of April thereafter; and that on the 17th day of the same month the grand jury returned their indictment into court, and that he, being then called, came not.

The conclusion from these facts is irresistible, that he was committed to jail; that he was released from jail when he entered into recognizance ; and his actual default fully appears of record. Under these circumstances, we think we are abundantly justified in presuming that all the necessary steps were complied with, and the proceedings were regular and proper. All proper presumptions will be indulged in favor of the judgments of the Circuit Courts, and they must appear clearly erroneous before they will be disturbed. It has been argued here that there is nothing to show that Rogers, the prisoner, was taken before Judge Smith to be recognized. The recognizance, as embodied in the record, states explicitly that both he and Byownlee appeared before the judge and executed the same. Bronson, Ch. J., in delivering the opinion of the Supreme Court of New York, remarks: “ When the recognizance has a condition to do some act, for the doing of which such an obligation may be properly taken, and the officer before whom it was acknowledged had authority by law in cases of that general description, I think the recognizance is valid although it does not recite the special circumstances under which it was taken; and in declaring upon such a recognizance, I do not think it necessary to aver the existence of the particular facts which prove that the officer had authority to take it.”

There is an obvious distinction between cases where a charge or burden is attempted to be fastened upon a party by a proceeding in invitum, and those where the charge or burden springs from his own voluntary act. (People v. Kane, 4 Denio, 531.) With us no formal declaration is filed in proceeding on a recognizance, as is the practice in New York and some of the other States ; but the scire facias issues at the instance of the prosecutor, and the demurrer reaches not only to- the writ but to the whole record. And it sufficiently appeared that there was an 'apprehension of the party, that he confessed his guilt and was committed to jail; that he was afterwards recognized, and that he made default when indicted. This objection is therefore purely technical, and we will not say that it follows as a consequence that the whole proceeding is void.

But it is not easy to perceive how the plaintiff in error is injured by the decision of the court. The entering into the recognizance was not in invitum, but his own voluntary act, by which he freely and voluntarily acknowledged that he owed and stood indebted to the State in a certain sum, providing the prisoner did not make his appearance at court and answer an indictment to be preferred against him; the prisoner did not make his appearance; the recognizance was declared forfeited and the plaintiff in error adjudged to pay his part. This is in precise accordance with his contract. The recognizance was placed among the papers in the cause, and the failure to mark “ filed” on the same was evidently a mere omission of the clerk. It ought not to be regarded as a fatal defect. It would have been perfectly competent for the court to have ordered it filed nunc pro tunc.

In examining the record we cannot concur in the position taken, that the recognizance does not show that Rogers was charged with any offence known to the law. It may be a bad description, but it is certainly sufficient; technical precision is not here required. The recognizance is in the usual form, binding the prisoner to appear in court to answer an indictment to be preferred against him, and not depart the same without leave, &c. He was therefore bound to appear, not only to answer the specific charge for which he was committed, but all others which might be preferred against him. (People v. Sterger, 10 Wend. 481; Champlain v. The People, 2 Comst. 81; 2 Hawkins’ Pl. Cr.,ch. 15, § 84.)

The result is the judgment must be affirmed.

The other judges concur.  