Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1897-04-25


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''
1t IS cOntended on behalf of the ADpel-
lants that before the recognizance c0uld
legally be declared forfeited, the i!efen-
dant should have been called at the Court
House door, and the record of the pro-
ceedings should 80 show. This position
cannot be sustained. Section 523 of tho
Criminal Practice Act provides when and
in what manner such forfeitures shall ~.
taken. 1t provides that if without suffi-
cleht excuse, the defendant neglect to ap-
pear Tor arralgnment, or for trial or judg-
ment, or upon any other occasion, when
MS presence in Court may be lawfully re
qulred, or to surrender himself in execu-
tlon OF the Judgment the Court shall di-
rect the fact to be entered upon it's min
| utcs, and the recogniZaace shall there
upon be declared forfeited.
| Gen.Stats. of Nevada. Sec. 440s.
This provision of the Statute is manda-
tory. 1t does not require that the record
! must show that the defendant was called,
neither Is 1t necessary hereunder that the
! defendant should be called.
II the aVerments of the answer are true
ana they must be so considered for the
| purpose of the demurrer, then it was er-
! r0r Tor the District Court to hold the same
! insufficient, as it atfirmatively is shown
| thereby that the only record of forfeiture
! made by the District Court is the one
detective IN not showing the fact that the
, defendant neglected to appear upon some
one of the occasions, designated in sail
section 523
1t Is further contended, on the part of
the Appellants, that the avprments of the
! said answer that. at the time of the entry.
Of the order staying the execution OF tho
| SAID Judgment, no appeal thercTrnin had
"eth taken or was peniing, and that. at
the time of the delivery, acceptance and
! approval Of 80 3rcognizance no apneaI
had been tas>, a from said Judgment or
was pending therCfrom and that no an
peal had ever been taken from the same
were complete defense to the action. and
that II was error of the District Court in
holding otherwise.
In briet. tie contention is. that thp trial
tnUrt had 10 authority to make an order
staying the execution of Judgment of
Imprisonment and no authority to release
or order the release of defendant under
fer"gni|lncc, or otherwise, after iud,r-
ment oi imprisonment had been rendered !
against hini. except after an appeal there |
from had been taken. and therefore. any !
ree0GnIzancc given for that purpose and |
at such time is void.
This contention. also. involves A con-
strur1lon of our Criminal Practice Act |
and must be sustained.
Section Isl Of the Criminal Practice Act
provides that "when a Judgment has been
pf"h"unrei' a certified copy OF the eutry
thereof i'll the minutes Stall lre roRru-
WIrH furnished the officer whose duty if |
l. '"eN"c''tc The judgment, and no other
war;. iii orauthority is necessary to ius
uty g" Require the execution thereof. ex-
cept when judgment of death is rem
dero T.
Gen, Stats. of Nevada Sec. 1891.
: ctiOn 453 Of the same Act. exnressly
provides that If the Judgment be i'm
/ /
WITH ne committed to the custody of the
proper officer. and by him detained until
the Judgment be complied with.
Gen. Stats. of Nevada Sec 1889.
We are unable to find any other provis-
IONS OF th" aw Tearing directly upon the
time and manner # enforcing the iudp-
lhent OF the District court in cases of this
or in any manner m0difyiDo | ,
the same, excepting 81 II provisions as !
direct the enforcement of such i,idguent
by order of the Appellate Court, on ap- {
P"'u. \" discretion Is repOsed in the Dis
'rict court, as to the time its Judgment ,
snail becoine operative and enforcible.
ana any order thereof in contraventiOn of
the direct provisions of the Statutes above =
cited is without authority aud void and +
he release of the defendant, with or
without bond, pursuant to such order is
lnwarranted, and any bond, recognizance
)r bail given for such release for the mr.
pose Of such order is without authority
md void
If the recognizance was given for the
purpose OF appeal, as it evidently was. S
hen, under the averments of the answer. 4
Noulu IL De VOld! w must 50 hold. n
Briefly, Che provisions of the Criminal
'ractlce Act permit an appeal by the de- C
endant i 'I.',lin2 uc..on to the Su- j,
'reme Court from a final judgment of the
district Court, within three months after
ne Judgment is rendered, by the service
f notice on the Clerk of the Court and
ne District Attorney, stating, in effect s
hat the appellant appeals therefrom.
Gen. Stats. of Nevada, Secs. 4349 to
356
1t is also provided that upon the appeal
eing taken, the Clerk with whom the no.
ce of appeal is flied must within ten