37 P. 59 | Or. | 1894
The judgnient appealed from rests upon the power of a court, on motion of the state, to set aside a valid indictment, upon which the defendant has been admitted to bail, resubmit the case to the grand jury and hold the bail liable for the appearance of defendant to answer a new indictment if one be found. The only provision of law making bail liable for the appearance of a defendant to answer a new indictment is to be found in sections 1317 and 1328 of Hill’s Code, which provide that when the original indictment is set aside on motion of the defendant, for any of the reasons specified in section 1314, or a demurrer thereto is sustained, the court may order that the case be resubmitted to the same or another grand jury, and in such case the bail remains answerable for the appearance of the defendant to answer a new indictment if one be found. But in this case no motion or demurrer was interposed by the defendant. The indictment was set aside by the court on motion of the district attorney. Indeed, the record does not show that there was any defect in the indictment which could have been taken advantage of by a motion or demurrer on the part of the defendant, or that it was resubmitted to the grand jury for the purpose of correcting some formal defect, but presumably it was resubmitted so that the state might change a material allegation, and thereby relieve itself from some possible embarrassment in being compelled to prove that the animal stolen was a gelding as charged in the first indictment. The act of the court in thus resubmitting the matter to the grand jury at the instance of the state, in our opinion, amounted to a dismissal of the indictment specified in the bail bond, and clearly operated as a discharge of the sureties. By their undertaking the sureties covenanted with the state that the defendant