Further, if the accused requests, and the Court and prosecuting attorney consent, a trial may be had in a misdemeanor case with the accused absent. State v. Norton, Mo.Sup., 347 S.W.2d 849 (1961); City of St. Louis v. Walker, Mo.App., 309 S.W.2d 671 (1958); S.Ct.Rule 37.485, V.A.M.R. The exceptions do not apply in this case.
Although the rule seems to permit the proceedings to carry forth in the absence of a defendant if it is agreeable to both the court and the prosecuting attorney, such is not the interpretation given it by the Missouri Supreme Court. In State v. Norton, 347 S.W.2d 849 (Mo. banc 1961), the defendant had failed to appear for a court date on a traffic offense, his attorney did appear and successfully argued a motion to dismiss the information, and the question on appeal was the propriety of the forfeiture of defendant's appearance bond. The court upheld the forfeiture and the scire facias proceeding to enforce the forfeiture.
While the court will look to the surety's property in the event that the accused fails to appear at the proper time and place, it is the accused's presence in court that is the raison d'etre for the bail bondsman and not his financial wherewithal. State v. Norton, 347 S.W.2d 849, 856 (Mo. 1961). We find no merit in respondent's contention that the business of writing bail bonds is analogous to the business of commercial banking.
However, other courts have treated such proceedings as civil in nature and have applied the procedural rules governing civil actions. See, e.g., United States v. Plechner, 577 F.2d 596 (9th Cir. 1978); People v. Argonaut Ins. Co., 139 Cal.Rptr. 795 (Cal.App. 1977); LaRue v. Burns, 268 N.W.2d 639 (Iowa 1978); City of Westwood v. Holland, 394 P.2d 56 (Kan. 1964); State v. Norton, 347 S.W.2d 849 (Mo. 1961); State v. United Bonding Insurance Company, 464 P.2d 884 (N.M. 1970). Such treatment is logical.
The court of appeals in Walker saw that this was so and this court should likewise recognize it to be true. In State v. Norton, 347 S.W.2d 849 (Mo. banc 1961), a bond forfeiture case where the defendant failed to appear at trial in court on a misdemeanor charge, and in State v. Cook, 432 S.W.2d 345 (Mo. banc 1968), an appeal from conviction of defendant in circuit court on a misdemeanor charge where defendant failed to appear for trial (neither case was an appeal from magistrate court), this court held that a person could not be tried for a felony or misdemeanor unless he be personally present except when the accused, in a misdemeanor case, requested and the court and prosecuting attorney consented to a trial in his absence. Norton and Cook cite City of St. Louis v. Walker, supra, with approval.
Identity is a main issue in a simple assault charge and defendant's absence would make it difficult, if not impossible, for the trier of fact to arrive at a true and just verdict. Cf. State v. Norton (Mo.) 347 S.W.2d 849. Another problem before the trial court in determining whether it should proceed in the instant case was whether there were before it sufficient facts to show a waiver by defendant of his right to appear for trial. This court in State v. Tupa, 194 Minn. 488, 495, 260 N.W. 875, 878, 99 A.L.R. 147, stated:
Art. V Sec. 3, Constitution of Missouri, V.A.M.S. The state is the real party in interest in this civil action to recover a penalty to be paid into the school fund of the state. This case is comparable to those where the state maintains a civil action to recover on an appearance bond. Compare State v. Haverstick, Mo., 326 S.W.2d 92, 75 A.L.R.2d 1422, and State v. Norton, Mo., 347 S.W.2d 849. The basis for the recovery of a penalty from defendant, as expressly alleged in the petition, is that he violated Section 390.
"'A bail bond is a contract between the government, on the one side, and the principal and sureties, on the other.'" State v. Norton, 347 S.W.2d 849, 855 (Mo. banc 1961), quoting 6 Am.Jur. (Rev.Ed.) 89, ยง 61. The agreement pursuant to which the appeal bond was written provided that the bond premium was earned upon execution of the bond.
"The breach of the bond takes place when the defendant fails to report in court as required and the court enters that fact of record." State v. Yount, 813 S.W.2d 85, 87 (Mo.App.E.D. 1991), quoting, State v. Norton, 347 S.W.2d 849, 856 (Mo.banc 1961). "The mere noting of the forfeiture is not the final determination of the liability of the defendant and his surety.
"The breach of the bond takes place when the defendant fails to report in court as required and the court enters that fact of record." State v. Norton, 347 S.W.2d 849, 856 [11] (Mo. banc 1961). After the breach of the bond, the court is required to hold a hearing and enter a judgment on the bond penalty.