8 Ala. 55 | Ala. | 1845
It has been always considered, that the general law, which authorizes a clerk of the Circuit Court to issue a writ of error, to remove to this Court, a cause in which a final judgment, &c., has been rendered, embraces a case like the present. Judgments on forfeited recognizances, or fines or penalties, imposed without a previous indictment, or the verdict of a jury, have been thus revised. The provision of the Penal Code applies to judgments rendered on indictments, and does not require an application to this Court for a writ of error, where the proceeding is by motion. [Clay’s Dig. 470, § 2.]
It is provided by the act of 1812, among other things, that if any person shall be committed to the custody of any sheriff, or other officer, by any of the Courts of this State, until the fine, for
By the act of 1815, it is enacted that all fines and ¡forfeitures shall thereafter be paid into the county treasury, and not into the State treasury, &c.; and the county treasurer is hereby required to proceed immediately, against any officer who shall fail to comply with the provisions of this section. [Clay’s Dig. 249, § 10.]
The twelfth and thirteenth sections of the fifth chapter of the Penal Code provide, that if any sheriff, &c., having the legal custody of any person, chaaged with, or convicted of a criminal of-fence, shall voluntarily suffer, or permit, the person so charged or convicted, to escape, he shall, on conviction, be punished by imprisonment in the penitentiary, &c. And if, through negligence, he shall suffer any prisoner in his custody, upon a conviction, or upon any criminal charge, to escape, he shall, on conviction, be fined, not less than two hundred and not exceeding one thousand dollars. [Clay’s Dig. 429.]
Whenever a person charged with a criminal offence is put upon his trial, he is by operation of law, committed to the custody of the sheriff, and there is no necessity for either a general or special order, mandatory to that officer. From that moment the accused is in legal custody, and the sheriff, as the executive officer, is charged with his safekeeping.
The act of 1812, merely furnishes a remedy by which the fine, &c., with which the party committed was charged, may be recovered of the sheriff, or other officer, or their sureties, in case of his escape. Its effect is to impose on them a liability in numero, where an escape has been suffered. But the party guilty of a breach of official duty, was still subject to an indictment, if the facts were such as to constitute an offence. So the officer
The act of 1815, directs, that “all fines and forfeitures shall thereafter be paid into the county treasury,” and requires the county treasurer to proceed against delinquent officers, as it was previously the duty of the Comptroller of Public Accounts to do. The proceeding in the present case indicates that the Court me-ro motu, or, perhaps, at the instance of the solicitor, was the actor. This is an irregularity which we think fatal to the judgment; the motion should have been made on behalf of the county treasurer, and he should appear as the party seeking the judgment of the Court. For this defect, the judgment of the Circuit Court is reversed, and the cause remanded.