Morrow v. State , 5 Kan. 563 ( 1870 )

By the Court,

Valentine, J.

This action was originally brought in the district court of Miami county, by the county attorney in the name of the State of Kansas, and against the plaintiff in error, Katcliffe Morrow, on two certain instruments in writing, claimed to be recognizances in a criminal proceeding.

The only question in the case, is whether these instruments in writing are in law recognizances.

They were taken by the clerk of the district court, acknowledged before him, and approved by him.

During the progress of the trial in the court below, the county attorney introduced them in evidence over and against the objections of the defendant below, and here the defendant claims the court erred in permitting such instruments to be introduced as evidence.

None of the other evidence in the case is brought to this court.

Recognizances: cases: Criminal We do not think that these instruments are legally recognizances. A recognizance is an obligation of record entered into before some court or officer duly authorized for that purpose, with condition to do some particular act. 2 Bouv. L. Dic., 428; 2 Bl. Com., 341; 1 Chitty Cr. L., 90; 1 O. St., 399; 2 Tidd’s Pr., 1,083; 4 Denio, 534.

It is admitted by counsel for the defendant in error, that the clerk of the district court has no authority to take or approve recognizances, and therefore it must be held that these supposed recognizances are void. 11 Iowa, 273; 7 Pick., 233; 7 Mass., 280; 16 Mass., 198; 9 Metc., 407; 15 Ill., 291.

Record : Evidence. They cannot of course become any part of the ” J . record, and cannot therefore be sued on, or be used as evidence. 4 Gray, 445; 1 Park. Cr., 141; 4 id., 45; 4 Denio, 534; 9 Johns., 287; 4 Wend., 393; 10 id., 472; 4 Mass., 643.

Cleric of Dis-wet courts. It may be ura;ed that there was evidence show- " ° jng tha-f; the court deputized the clerk to take these recognizances, but this the court could not do. It may also be urged that they were taken in open court, but that would not make them any better, as they were not taken by the court. It is true that the clerk may do all the work in taking a recognizance, but it must be done in open court, under the court, by order of the court, and in the name of the court; and when the instru.ment itself shows that it was not so taken, it is void. We will suppose that the order of the court of April 13th, 1869, entered at the November term of the court, 1869, nunc pro tunc, was introduced in evidence; and we will also suppose that all other evidence of the plaintiff below, that would benefit the plaintiff any, was introduced in evidence, and still, we cannot imagine a case which, would make these two supposed recognizances legal evidence. The judgment of the court below is reversed, and cause remanded for further proceedings in accordance with this opinion.

All the justices concurring..