State v. Lane

The opinion of the court was delivered by Brewer, J.:

Frank Lane was a witness for the state in a criminal case pending in the district court of Washington county. The case was continued, and Frank Lane required to give a recognizance, with sureties, to appear and testify at the succeeding term. He gave such recognizance with defendants in error as sureties. Failing to appear, this recognizance was forfeited, and suit brought thereon. The sureties demurred. The demurrer was sustained and this ruling the state seeks by this proceeding to reverse. The ruling of the district court was correct. Upon a continuance of a criminal case in the district court the witnesses may be required to give personal recognizances, but there is no authority for requiring sureties thereto. (Gen. Stat., 851, crim. code, § 196.) On a preliminary examination the committing magistrate may, according to the statute in certain cases, require sureties. (Gen. Stat., 829, crim. code, §§ 57, 58.) But the power given by § 58 to the committing magistrate is nowhere given to the trial court in continuances. Without such statutory authority the court would have no power to require sureties to a recognizance, and a recognizance given without authority of law binds no one. It is without consideration. The defendants in error were therefore not bound by the recognizance into which they entered, and the judgment of the district court sustaining the demurrer was correct, and must be affirmed.

The witness, Frank Lane, the principal in the recognizance, is not a party to thjs proceeding, and of course this decision will not affect him.

All the Justices concurring.