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18 Ind. 375

Campbell v. State

Indiana Supreme Court

Decided May 15, 1862

Indiana Supreme Court · decided 1862-05-15

<p>In an action upon a forfeited recognizance, it is sufficient to set out tbe recognizance in haec verba.</p> <p>It is not necessary that a recognizance taken in open Court and entered upon its record, should be signed by the parties. It is witnessed by the record and not by the signatures.</p> <p>A defendant in a prosecution for crime or misdemeanor, may be called and his recognizance forfeited, while the motion for a new trial is pending.</p> <p>Where a defendant is recognized to appear and answer to an indictment, under which he has been convicted of a lesser offence than that charged, he is still bound to appear, abide the order of the Court and not depart without leave.</p>

Relies on State v. Whitson

Good law ✅— No negative treatment on recordhow we know

Decided 1862-05-15

How this case has been cited

Cited by 5 later decisions — most recently December 1932

1 federal appellate · 4 state decisions

2018621870188018901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Worden, J.

¶1Action on a recognizance entered into by Campbell, Barkhizer and McKinney, conditioned for the appearance of McKinney before the same Court, on, &c., to answer to an indictment preferred against him for rape, and that he would abide the judgment and orders of the Court thereon, and not depart without leave.

¶2McKinney was tried and acquitted of the alleged rape, but •convicted of an assault and battery with intent to commit a rape. Pending a motion for a new trial in the cause, McKinney was called, and failing to appear, and his sureties failing to produce him, the recognizance was adjudged to be forfeited.

¶3Process was retunrned not found as to McKinney, but Campbell and Barkhizer appeared and pleaded, and against them the State had judgment.

¶4The complaint was demurred to, and it is objected that no copy of the recognizance is set out. The complaint sets out the recognizance in haec verba, and that is sufficient. Again, it is objected that the recognizance is not signed or sealed by the defendants. This was not necessary. A recognizance is witnessed only by the record, and not by the seal or signature of the party bound. Andress v. The State, 3 Blackf, 108. It is also urged that McKinney could not be called while his motion for a new trial was pending. No reason has been shown why this could not be legally done, and none occurs to us. It is also urged that as he was acquitted of the rape, he was not bound, to appear any further to the cause. On an *377indictment for rape, a party may be acquitted of the rape, but convicted of an assault and battery with intent to commit that offence. 2 R. S. 1852, p. 370, sec. 72. McKinney was bound to answer to the indictment, and also to abide the judgment thereon, and not depart without leave. Judgment might have been rendered against him on the conviction, and he forfeited the recognizance by absenting himself without having been discharged. The State v. Whitson, 8 Blackf. 178.

John S. Peid and B. F. Claypool, for the appellants.James C. McIntosh and Nelson Truster, for the appellee.

¶5The evidence sustains the finding and there is no error in the record.

Per Curiam.

¶6The judgment below is affirmed, with costs and one per cent, damages.

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