State v. Hiney

Ray, J. Action upon a forfeited recognizance. Demurrer to the complaint sustained. The appellee insists that the complaint is defective in not showing authority in the officer to take the obligation. It is shown that the defendant Smith was under arrest, in the custody of the sheriff, by virtue of a warrant to him directed by the clerk of the Howard Circuit Court, issued by said clerk upon an information previously filed by the district attorney, charging that in the county, &c., he, Smith, unlawfully sold intoxicating liquor, and that the defendants entered into a recognizance, which was approved by the sheriff. The allegations are clearly sufficient. The complaint alleges “that said recognizance is defective in this, that the subscribing was ‘Joseph K. Hiney, Smith $ St. Clair,’ and it should be John St. Clair and Andrew J. Smith, for that the said sureties did intend to bind themselves, jointly and severally, in the aforementioned sum.” The copy of the instrument filed shows that it was signed “Smith 3; St. Clair.” The averment, though not forma], is [382] sufficient. 2 R. S., § 790, p. 333. The demurrer should have been overruled. D. Williamson, Attorney General, for the State. J. W. Bobinson, for the appellees. The judgment is reversed, at the costs of appellees.