State v. Murphy , 23 Nev. 390 ( 1897 )

The additional facts appear in the opinion. The respondent recovered a judgment against the appellants, Chiatovich and Ingalls, for $3,000, upon a forfeited recognizance, on the 21st day of December, 1896, in the district court of the first judicial district, state of Nevada, in and for Esmeralda county. From that judgment an appeal has been taken. A number of errors have been assigned, based upon the rulings of the lower court, nearly all of which involve the construction of the criminal practice act, relating to the taking and forfeiture of bail thereunder.

The complaint avers that one Charles Murphy was tried and convicted of the crime of "selling whisky to an Indian," in said district court, on the 23d day of June, 1891, and a judgment of imprisonment in the state prison for a term of two years was rendered against him therefor; that thereupon the said Murphy, expressing his intention to appeal from said judgment, moved the court for a stay of execution thereof and to admit him to bail; that the court granted a stay of execution of the said, judgment for ten days, and ordered that he be admitted to bail in the sum of $3,000; that on the 3d day of July, 1891, the appellants made and delivered, and caused the same to be filed in said district court, the recognizance sued on, whereupon the said Murphy was released from custody; that at no time had the said Murphy obtained an order on appeal, or otherwise in any manner affecting said judgment; that the said Murphy had not surrendered himself to the custody of the said court or the officers thereof; that on the 7th day of December, 1891, said court had duly made and entered an order declaring said bail forfeited, and that the same had not been paid.

A copy of the recognizance is attached to the complaint and made a part thereof, and recites the trial and conviction of said Murphy of the crime of "selling whisky to an Indian," and the judgment of imprisonment therefor; that the said Murphy had, before the making thereof, been ordered admitted to bail. It is conditioned that, as the said defendant is about to appeal said cause, he will surrender himself in execution of the judgment, upon its being affirmed, modified, or upon appeal being dismissed, and that he will in all respects abide the order and judgment of the appellate court. The recognizance was, in part, endorsed: "Approved this 3d day of July, 1891, and filed as a record of said court and cause. Richard Rising, district judge, presiding."

The errors assigned, which will be considered by this court, arise from the rulings of the district court on the demurrers to the complaint and answer.

Appellants contend that the complaint shows that Murphy was indicted, tried and convicted of an offense unknown to the laws of this state — that the designation of the offense in the complaint and recognizance as "selling whisky to an Indian "is not a statement of a cause of action or a designation of any offense punishable under our laws, therefore no cause of action exists or is averred and the recognizance is void. We cannot so hold.

Under the provisions of a statute of this state, in force at the time of the trial and conviction of the defendant, it was an offense to "sell, barter, give, or in any manner dispose of any spirituous or malt liquors, wine or cider of any description to an Indian within this state." (Stats. 1887, 37.) By direct terms it was an offense to "sell spirituous liquor to an Indian." It is well settled that courts will take judicial notice of the meaning of words which, from continuous use, have acquired a definite signification generally, if not universally, known. (Alder v. State, 55 Ala. 16;Watson v. State, 55 Ala. 158;Schlicht v. State, 56 Ind. 173.) The courts judicially know that whisky is a spirituous liquor. Section 504, criminal practice act (Gen. Stats. 4384), gives substantially the form of recognizance required, and this court, in State v. Birchim, discussing the same question, say that "section 4968 of the laws of Iowa contains a form for recognizances similar to our section 504. It was held in theState v. Marshall, 21 Iowa, 143, where the principal was held to answer upon a charge of seduction, that the use of the word `seduction' in a bail bond was a sufficient compliance with the requirement of the statute to `state briefly the nature of the offense.' The word `nature' is defined by Webster as meaning `sort, kind, character or species,' and we think this is the sense in which it is here used." (State v. Birchim,9 Nev. 100.)

In the case at bar, the requirements of the statute are sufficiently complied with in briefly stating the nature of the offense as "selling whisky to an Indian," and the averments of the complaint to the same effect are also sufficient.

It is further contended that the complaint shows that the right of action is barred by the statute of limitations, under the provisions of the clause therein requiring actions upon a statute for a forfeiture or penalty to the state to be commenced within two years after the right of action has accrued. Counsel for appellants have exhaustively and ably argued this question, but we cannot so hold. This is an action upon an obligation founded upon an instrument in writing, and the right of action thereon is barred by the six-year clause of our statute. (Gen. Stats. 3644.)

It is true that the obligation is authorized by statute, that it provides a penalty for its violation, and the right of action arises only upon a forfeiture thereof, yet without and apart from the written obligation, there is and could be no liability whatever on the part of the appellants. Their liability is founded upon and fixed by the obligation and, as upon other obligations, the right of the state to sue arises under a breach thereof. Counsel for the appellants cite Ryus v. Gruble,31 Kan. 767, and Commissioners v. Van Slyck,52 Kan. 625, in support of their contention.

These causes involve the same question, and a careful examination clearly shows wherein they are distinguishable from the case at bar. The case of Ryus v. Gruble,supra, was an action upon a sheriff's bond. The alleged breach of duty, under which the sureties upon his bond became liable, was the levy of a void execution upon certain property, and making a sale thereunder. Under the Kansas statute action for this wrong was barred after two years, but it was there contended that the action being upon the sheriff's bond, it was not barred until five years had elapsed. The supreme court of Kansas, in passing upon this question, very correctly held that the wrongs committed by the sheriff in making the levy and sale were the real and substantial foundation of the plaintiff's cause of action, and that the bond was only a collateral security for the enforcement of such cause of action. The bond did not give the cause of action; the wrongs did. That court announces the same rule inCommissioners v. Van Slyck, supra.

In the case at bar, the real and substantial foundation of the respondent's cause of action is the written obligation, and without that obligation no cause of action exists, and could not be maintained against the appellants.

It is further contended, on behalf of appellants, that the complaint is not sufficient and the recognizance is void for the reason that no time, place or court is named therein, in which the defendant is required to appear.

This contention is not tenable. Section 502 of the criminal practice act provides that after conviction, and upon an appeal, the defendant may be admitted to bail. * * * "Second — If judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed." (Gen. Stats. 4382.) Section 515 of the same act provides that the further conditions of the recognizance shall be to the effect that the defendant will, in all respects, abide the order and judgment of the appellate court upon the appeal. (Gen. Stats. 4395.) The recognizance is conditioned in nearly the exact language of the law, and the law designates the time, place and court in which the defendant must appear and surrender himself in execution of the judgment. See, also, sections 4368 to 4374 inclusive, Gen. Stats.; People v. Carpenter,7 Cal. 402.

It is also argued that the recognizance is void for the reason that it was never filed or became a record of said cause or court. The complaint avers that it was filed. This averment was sufficient. (U. S. v. Eldredge,5 Utah, 161.) It was made a record by the order of the court. (Trans., p. 28.)

Two important questions are presented by the ruling of the district court whereby the respondent's demurrer to the answer to the second amended complaint was sustained. The answer, among other things, alleges that, at the time the order was made staying the execution of the judgment, no appeal had been taken from the judgment, and no appeal therefrom was pending; that at the time said recognizance was delivered, approved and accepted, no appeal was pending from said judgment, and no appeal therefrom has ever been taken. It further alleges that the defendant was never notified or requested to appear in said district court, on the 7th day of December, 1891, or at any other time; that he was never called at the court house door, or at any other place, to appear in said court. It also affirmatively alleges that the only record made of the forfeiture of the recognizance was as follows: "Now, on motion of the district attorney, it is ordered that the bonds of Charles Murphy be and they are hereby declared forfeited."

It is contended on behalf of the appellants that, before the recognizance could legally be declared forfeited, the defendant should have been called at the court house door, and the record of the proceedings should so show. This position cannot be sustained. Section 523 of the criminal practice act provides when and in what manner such forfeitures shall be taken. It provides that if, without sufficient excuse, the defendant neglect to appear for arraignment, or for trial or judgment, or upon any other occasion, when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court shall direct the fact to be entered upon its minutes, and the recognizance shall therefore be declared forfeited. (Gen. Stats. 4403.)

This provision of the statute is mandatory. It does not require that the record show that the defendant was called, neither is it necessary thereunder that the defendant should be called.

If the averments of the answer are true, and they must be so considered for the purpose of the demurrer, then it was error for the district court to hold the same insufficient, as it affirmatively is shown thereby that the only record of forfeiture made by the district court is the one above set out, and that record is fatally defective in not showing the fact that the defendant neglected to appear upon some one of the occasions designated in said section 523.

It is further contended, on the part of the appellants, that the averments of the said answer that, at the time of the entry of the order staying the execution of the said judgment, no appeal therefrom had been taken or was pending, and that, at the time of the delivery, acceptance and approval of the recognizance, no appeal had been taken from said judgment or was pending therefrom, and that no appeal had ever been taken from the same, were a complete defense to the action, and that it was error of the district court in holding otherwise.

In brief, the contention is, that the trial court had no authority to make an order staying the execution of a judgment of imprisonment and no authority to release or order the release of a defendant, under recognizance, or otherwise, after judgment of imprisonment had been rendered against him, except after an appeal therefrom had been taken, and, therefore, any recognizance given for that purpose and at such time is void.

This contention also involves a construction of our criminal practice act and must be sustained.

Section 451 of the criminal practice act provides that, "when a judgment has been pronounced, a certified copy of the entry thereof in the minutes shall be forthwith furnished the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require the execution thereof, except when judgment of death is rendered." (Gen. Stats. 4331.)

Section 453 of the same act expressly provides that, if the judgment be imprisonment, the defendant shall forthwith be committed to the custody of the proper officer, and by him detained until the judgment be complied with. (Gen. Stats. 4333.) We are unable to find any other provisions of the law bearing directly upon the time and manner of enforcing the judgment of the district court in cases of this character, or in any manner modifying the same, excepting such provisions as direct the enforcement of such judgment by order of the appellate court on appeal. No discretion is reposed in the district court as to the time its judgment shall become operative and enforcible, and any order thereof in contravention of the direct provisions of the statute above cited is without authority and void, and the release of the defendant, with or without bond, pursuant to such order is unwarranted, and any bond, recognizance or bail given for such release for the purpose of such order is without authority and void.

If the recognizance was given for the purpose of appeal, as it evidently was, then, under the averments of the answer, would it be void? We must so hold.

Briefly, the provisions of the criminal practice act permit an appeal by the defendant in a criminal action to the supreme court from a final judgment of the district court within three months after the judgment is rendered, by the service of notice on the clerk of the court and the district attorney stating, in effect, that the appellant appeals therefrom. (Gen. Stats. 4349-4356.)

It is also provided that, upon the appeal being taken, the clerk with whom the notice of appeal is filed must, within ten days thereafter, without charge, prepare and transmit to the clerk of the supreme court a copy of such notice and of the record of such action. (Stats. 1889, 24.)

Section 479 of the criminal practice act provides that no appeal from a judgment of conviction, unless it be one imposing a fine only, shall stay the execution of the judgment, but the defendant, if in custody, shall remain in custody, unless admitted to bail as prescribed in section 502. (Gen. Stats. 4359.)

Section 500 of the same act provides that, after conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail. (Gen. Stats. 4380.)

It is very clear, from these statutes, that an appeal from a judgment of imprisonment would not operate as a stay of the execution thereof, and the defendant, if in custody, must so continue unless admitted to bail.

In the. case at bar, the complaint avers that the defendant was released from custody upon the execution and acceptance of the bail bond. The court had no right, no authority and no power to order a stay of execution of the judgment of imprisonment for any length of time; nor had it any authority to release the defendant from custody, under bail, until he had appealed.

An appeal is taken by the service of the notice required in section 4354 above cited. (Lambert v. Moore,1 Nev. 344.)

It is well settled that bail, taken in criminal action, to be valid, must be authorized by law. (Dickinson v. State, 20 Neb. 72;Powell v. State, 15 Ohio, 579;State v. Clarke, 15 Ohio, 595;Williams v. Shelby, 2 Or. 144;State v. Winnenger, 81 Ind. 53;Harris v. Simpson, 14 Am. Dec. 101.)

For these reasons the court erred in sustaining respondent's demurrer to the appellants' answer to the amended complaint. The judgment will be reversed, and cause remanded for further proceedings in accordance with this opinion.