96 So. 318 | Ala. | 1923
The suit was for false imprisonment. A deputy sheriff is averred to have arrested plaintiff, under a warrant duly charging a felony, on which was indorsed by the clerk issuing the process, "The officer arresting may admit the defendant to bail upon his entering into bond in the sum of $5,000," and plaintiff was taken, under the foregoing process, to the county jail, where he was soon after released on bail, approved by the sheriff. The offense for which plaintiff was arrested is averred to have been "obtaining signature by false pretenses." This is a felony. Code, § 6921; Addington v. State,
Provisions of the statute in regard to bail are: (1) If the offense charged in the indictment is a misdemeanor, the defendant may be discharged "by the sheriff, or his deputy, on giving sufficient bail" (Code, § 6330); (2) if the indictment is for a misdemeanor, and the defendant is committed to the jail for want of bail, "the sheriff may, at any time, discharge him on his giving bail in the amount required"; and (3) bail for felony is fixed by the judge of the court, taking bail of the defendant in open court, or by indorsing the amount of the same on the indictment, or by a judge or chancellor in vacation fixing the amount of the bail. And the sheriff is given "authority, and it is his duty, to discharge such defendant in term time or vacation, on his giving bail as required." Code 1907, § 6331; State ex rel. Smith, Atty. Gen., v. Lowe,
The complaint is in one count, charging a tort against the deputy sheriff, and sufficiently states the facts to show that the offense charged was a felony (Code 1907, § 6921); Addington v. State,
Section 6331 of the Code, as we have observed, places the duty upon the sheriff to approve bonds in bailable felonies, after the amount has been determined or fixed by a court of competent jurisdiction, or by a judge or chancellor having jurisdiction to fix such bail.
Under the old statute (Clay's Digest, § 5, p. 461), it is declared that the Penal Code directs that, when the offense for which the party is arrested is a misdemeanor, it shall be the "duty of the sheriff to take the party's recognizance," with sufficient sureties, in such sum as the character of the prosecution may require. The duty thus imposed by statute upon the sheriff by construction was said to be that it "may be performed by a deputy." Shreeve Knapp v. State,
We are of the opinion that the defendants' third ground of demurrer — that the count did not state a cause of action as required by law — was sufficient and available to each of them.
The judgment of the circuit court is reversed, and the cause is remanded, for the failure to sustain demurrer to count 1.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.