Dunkin v. Hodge

46 Ala. 523 | Ala. | 1871

Lead Opinion

B. F. SAFFOLD, J.

The rules of law applicable to this ease, as presented by the bill of exceptions, are as follows:

Such a contract as that set up by the defendant is one obstructing or interfering with the administration of public justice, and is void. The purpose of bail is to restrain as little as possible the liberty of the citizen, consistent with his retention until his guilt or innocence of the offense alleged against him can be ascertained by due course of law. Whatever may be the duty of a citizen who knows that an accused person is endeavoring to give the bail re*527quired of him in order that he may escape from trial, it is certainly against his duty to aid him to do so. The punishment of felony prescribed by law, can not be commuted by the payment of money. If the testimony sustained the defense, the plaintiff could not l’ecover, because the agreement would be void as against public policy, and therefore the money could not be recovered back. — Add. on Con. 93, 96 ; Edgcomb v. Rodd, 5 East. 294. And, if valid, it gave the money to the defendant.

After the rendition of a judgment final on a forfeited bail bond, the solicitor has no authority to make any compromise in satisfaction of it. Neither has the court, after the adjournment of the term.

After judgment without objection on a forfeited undertaking of bail in a case of felony, which was approved Jjy the sheriff, it will be presumed that he was authorized to do so by the proper court. — Rev. Code, 4241; old Code, 3408.

The ruling of the circuit court was not in conformity with the principles herein declared.

The judgment is reversed and the cause remanded.





Dissenting Opinion

PETERS, J.,

(dissenting). — The reversal in this case is proper, but I am not able to consent to the argument upon which it is based or the deductions from it.

Undoubtedly it is the right of all persons, before conviction, to be bailed by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and excessive bail shall not in any case be required. Const. Ala. 1867, Art. I. § 18 ; Rev. Code, §§ 4234-35 ; Ex parte Croom & May, 19 Ala. 561 ; Ex parte Banks, 28 Ala. 89. After a defendant is once discharged on bail, I know of no law that confines him to remain in any one particular place or county in the State, or in the nation. It is neither immoral, criminal, or against the public policy, for a person who is not under arrest to go where he pleases, so he does not trespass upon the rights of others. He is not bound to remain in the jurisdiction. He is only bound to appear at the place and time appointed, or to pay a *528certain sum of money to the State for the use of the county, in which he stands charged. — Rev. Code, §§ 4239, 4244, 4254, 4255. And after his release upon bail from custody he may lawfully leave the court, the county, the State, or the nation. And he may go away at just such rate of speed as suits him, and at his own time. He may run away if he thinks it best. Then, a contract to aid one to procure bail for the purpose of running away, after his release from custody, is not illegal. And money deposited for that purpose, which is not used, may be recovered back by the true owner. — Hitchcock et al. v. Lakens & Son, 8 Port. 333.

The judgment on a forfeited bail piece is the property of the county. It is the duty of the county solicitor to attend to its collection; and for this purpose, he has the same power over it that any other attorney has' over the case of his client. The county, then, through its proper authorities, may authorise him to compromise the judgment, or it may accept and ratify a compromise that the attorney may make. Such a judgment is a judgment in a civil suit, and it is governed by the law. applicable to such suits. — Dover et al. v. The State, &c., 45 Alabama, 244. The compromise of a prosecution is illegal and forbidden by the public policy, but this is not the case with a civil suit. A contract based upon the former is illegal, but not one based upon the latter, — Phillips v. Kelly, 29 Ala. 628; 2 Bennett & H. Lead. Crim. Cases, 258 et seq.; 1 Chit. Cr. Law, 4 et seq.; 1 Pars, on Con. p. 456 et seq. ; 5th Ed. Rev. Code, §§ 3587, 3588 ; ib. § —; Motley et al. v. Motley, 45 Ala. 555.

For these reasons I feel compelled, most respectfully, to differ with the majority of the court in the application of the law sustaining the argument of the court in this case, In my opinion the plaintiff has clearly the right to recover, even if the accused in the criminal prosecution was bailed in order to afford him an opportunity to run away.