Elrage v. County of Greenlee, Civil No. 1380

Civil No. 1380 | Ariz. | Jun 23, 1914

FRANKLIN, C. J.

On the preliminary examination of one William Blake, charged with a publie offense, a justice of the peace of one of the precincts in Greenlee county, sitting as a committing magistrate, held the said Blake to answer the charge of grand larceny. The magistrate by whom the said Blake was so held admitted him to bail in the sum of $500. On the 31st day of July, 1912, Ed. Elrage, George Smith and Mosby Wilkerson, the appellants here, entered into a written undertaking as sureties for the appearance of the said Blake to answer the charge. The sureties duly justified, and the undertaking was approved by the magistrate. Blake was thereupon discharged from custody, and subsequently, having been indicted by the grand jury in Greenlee county for the said crime of grand larceny, was called to answer the indictment in the superior court for Greenlee county, and, failing to appear, the undertaking was declared forfeited. The forfeiture not having been discharged, the county attorney of Greenlee county brought this action in the name of the county against the bail upon their recognizance. Prom a judgment in favor of the county, and from an order overruling a motion for a new trial, the case is brought to this court for review.

It is urged that the action should have been brought in the name of the state of Arizona. The disposition of fines and forfeitures is directed by the law, and the amount to be recovered in this action must be paid into the county treasury of Greenlee county. Section 1430, Ariz. Pen. Code 1913. The county attorney is authorized to bring the action. Section 1215, Ariz. Pen. Code 1913. The county being the real party in interest, the action is properly brought in the’name of the county. People v. De Pelanconi, 63 Cal. 409" court="Cal." date_filed="1883-05-15" href="https://app.midpage.ai/document/people-v-de-pelanconi-5441301?utm_source=webapp" opinion_id="5441301">63 Cal. 409; Malheur County v. Carter, 52 Or. 619, 98 P. 489" court="Or." date_filed="1908-12-15" href="https://app.midpage.ai/document/malheur-county-v-carter-6900967?utm_source=webapp" opinion_id="6900967">98 Pac. 489.

It is said that the complaint is objectionable because the facts showing the jurisdiction of the magistrate to make the order holding the said Blake to answer are not pleaded. That the undertaking is also insufficient for the reason that it was not executed by the person held to answer, to wit, the said Blake. There is no merit in either contention. Thomas v. Territory, 10 Ariz. 180, 85 Pac. 1063. While the sufficiency of this undertaking is to be tested by the laws in force at the date of its execution, and under those laws the person held to answer after a preliminary examination was not required to join as principal in the undertaking to appear and answer, the Penal Code of Arizona 1913 makes provision that such person shall join as principal in the execution of such undertaking. Section 1195, Ariz. Pen. Code 1913. Of course undertakings executed after the present Penal Code went into effect will he governed by its requirements, and magistrates must act accordingly.

By a clerical misprision the name of the defendant Blake was left blank in a preliminary recital of the undertaking. But these appellants in the written undertaking do recite that the above-named "William Blake will appear and answer, etc. In this respect there is no uncertainty, and, if Blake’s name had been inserted in the blank, it would not have made the conditions of the undertaking more definite.

There is no reversible error, and the judgment and order stand affirmed.

CUNNINGHAM and EOSS, JJ., concur.

NOTE.—As to the effect of the delivery of a bail bond unsigned by principal obligor, see note in 12 L. ft. A. (N. S.) 1118.