State v. Wrote

Pemberton, C. J. Counsel for appellants contends that the complaint does not show, that the information presented in the district court against Smith charged him with the commission of a public offense. The allegation in the complaint in this respect is that the county attorney filed in the “District Court of the Sixth Judicial District of the State of Montana, in and for the county of. Carbon, an information charging the said Joseph Smith with the crime of grand larceny, committed within the county of Carbon and State of Montana on or about the 15th day of May, A. D. 1895, by unlawfully taking one cow, the property of, and from the possession of, H. C. Lovell.” From this it will be seen that the complaint alleges that the imformation charged Smith with the crime of grand larceny. The condition of the bond is as follows: “Now, therefore, if the said Joseph Smith shall be and appear at the next ensuing term of said court, on the first day thereof, and from day to day, and from term to term, and not depart therefrom without the order of said court, and if convicted of said crime, will render himself in execution thereof, then this obligation shall be void, otherwise to remain in full force and effect.” The complaint charges that the crime of grand larceny was committed by Smith, by his “unlawfully taking one cow, ’ ’ etc. But we think that part of the complaint alleging how he committed the crime charged in the information was unnecessary. It was surplusage. Omit this part of the allegation, and the complaint alleges that the information charged Smith with grand larceny,* — the charge mentioned in the bond as the one on which he was to appear at the district court and answer. [214] Counsel for appellants says the complaint is bad because it does not- allege that Smith, ‘ ‘without excuse, ’5 made default of appearance. The complaint alleges that Smith ‘ ‘ was duly called at the proper time and place, and failed to appear in person. ’ ’ This charges a failure on the part of Smith to comply with the condition of his bond, and is a sufficient allegation, we think, to authorize a forfeiture, under section 256, Criminal Practice Act (Compiled Statutes 1887, page 451). (People v. Bennett (N. Y. App.) 32 N. E. 1044.) If Smith hada sufficient excuse for not appearing, he ought to have shown it on a motion to set aside the forfeiture. Counsel for appellants contends that the complaint is bad because it alleges that the j udge, instead of the court, declared the bond forfeited. We think that the averment in the complaint that Smith was called and failed to appear in the district court was ‘ ‘equivalent to an averment that his default for not appearing was entered of record. ’ ’ People v. Huggins, 10 Wend. 465, and cases cited. This, we think, was all that it was necessary to aver in this respect. This was all that was necessary to aver under section 258, Criminal Practice Act (Compiled Statutes 1887, page 451). The counsel for appellants also contends that the complaint does not allege that the crime charged in the information was the same crime for which Smith was held to answer. Smith was held to answer for the crime of grand larceny. The complaint alleges that he was charged by the information with the crime of grand larceny, as we have seen above. It certainly does not appear by the complaint that the crime for which he was held to answer and the one charged in the information are not the same, but, on the contrary, it does fairly appear that the crimes alleged in the information and bond are the same. Counsel for appellants further contends that the complaint does not allege that the bond was certified by the sheriff, who took it, to the clerk, and “filed and recorded-by him.” This, we think, did not invalidate the bond, or relieve the sureties from their liability thereon. See Criminal Practice Act, § 258 (Compiled Statutes 1887, page 451). [215] We think the errors assigned are purely technical, and without substantial merit. The judgment appealed from is affirmed. Affirmed. Hunt and Buck, JJ., concur.