62 Ark. 500 | Ark. | 1896
(after stating the facts). This is an appeal by the sureties upon a forfeited bail bond from a judgment rendered against‘them upon such bond. Several reasons are urged by counsel why such judgment should be reversed, but we are of opinion that none of them are tenable.
The statutes of this state concerning bail bonds ^ ... evince an unmistakable intention on the part of the legislature to dispense with all merely technical defenses by the obligors in such bonds, and to compel the courts to consider only those defenses that affect the substantial rights of the parties. Sand. & H. Dig., sec. 2017.
This bond is in the usual form. It appears from it that Hancock was in custody, charged with the offense of an assault with intent to kill, and that the bail undertook that he should appear in the circuit court of the Watson district of Desha county to answer said charge, and that he should at all times render himself amenable to the orders of said court in the prosecution of said charge, and in default thereof that the bail should pay the State of Arkansas one thousand dollars. This being so, we hold that the act of the sheriff in sending said bond direct to the clerk of the Desha circuit court instead of filing the same with the clerk of the Jefferson circuit court, that it might be copied in the transcript, was an irregularity merely, and would not justify us in reversing the judgment upon the bond, for it did not in any way affect the substantial rights of appellants. The order for a change of venue and the filing of the transcript in the Desha circuit court at Dumas gave that court jurisdiction to try the charge against Hancock, notwithstanding the bond was omitted from the transcript. Beasley v. State, 53 Ark. 67. As the court had jurisdiction to try the charge against Hancock, and as he had given bond to appear in that court, it follows that, upon his failure to appear, the court had jurisdiction to declare the bond forfeited, and to try the action upon the forfeited bail bond, for the statute provides that such action shall be in the court in which the defendant was required to appear for trial. Sand. & H. Dig., sec. 2033.
It is also said that the sheriff had no authority to take the bond. The court had previously fixed the amount of bail by an indorsement upon the indictment that bail be received in the sum of one thousand dollars. When the change of venue was granted, it was ordered that the defendant give bond for his appearance in the court to which the venue was changed, and that the bond be approved by the sheriff. As no further order was made changing the amount of bail, the sheriff was bound by the order fixing the bail at one thousand dollars. The admission to bail and the amount of the same were determined by the court, and the only act of the sheriff was the approval of the bond, which was done in obedience to the order of the court. Under these circumstances, the sheriff had the right to take the bail. Sand. & H. Dig., secs. 2014, 2015 and 2016; Pinson v. State, 28 Ark. 397.
Neither was'it a valid defense to this action show that Hancock, prior to the forfeiture, had been arrested, tried, and found guilty of another offense in another court, and that, after being placed in the custody of the sheriff, he had escaped. He was not in custody at the time the bond was declared forfeited, and the performance of the condition of the bond was not made impossible by this act of the state in arresting him for another offense. The appellants executed this bond with knowledge that the principal might commit another offense, and be ordered into custody for such offense. The fact that he was placed in the custody of the sheriff, and so remained a short time, did not deprive them of the right to surrender him in discharge of their liability on such bond, for, even had he remained in custody, they could still have surrendered him by a proper proceeding-. We do not say that in such a case it would have been no defense to show that he was in custody at the time the bail was declared forfeited. What we hold is that the fact that he was taken in custody for a short time on a different charge does not, of itself, operate to discharg-e the bail, when it is shown that he was at large at the time the forfeiture was taken. If the law was different, a person under a heavy bond on a charge of murder, or other felony, mig-htgointo another county or circuit and purposely commit some misdemeanor, in order that his subsequent arrest might discharge the sureties on his former bond. If the officers having him in custody for the second offense were ignorant of the first arrest and bail, they would, so soon as he paid his fine, or served a term in jail, allow him to go at large, and, if the effect of this second arrest and imprisonment discharg-ed the sureties on his first bail bond, he might by this way escape punishment for the first offense. For these reasons, we conclude that a person who is on bail for one offense may be arrested for another offense without discharging his bail. If he be committed to jail for the second offense, and escape, his bondsmen may, in a case such as this, still be held liable, if they fail to comply with the conditions of their bond. Wheeler v. State, 38 Tex. 173; West v. Colquitt, 71 Ga. 559; S. C. 51 Am. Rep. 277; State v. Merrihew, 47 Iowa 112; S. C. 29 Am. Rep. 464; Brown v. People, 26 Ill. 28; Mix v. People, Ib. 32; 2 Am. & Eng. Enc. Law 26, and cases cited.
There were other objections to the rulings of the circuit court urged by counsel, but we are of opinion that no error affecting the substantial rights of appellants is shown. The judgment is therefore affirmed.
