Lead Opinion
delivered the opinion of the court.
This is an appeal from a judgment of the circuit court, making final a judgment nisi, formerly taken on an alleged forfeiture on an appearance bond executed by Harper. The facts ■are as follows: The record here shows that on the 11th day of April, 1905, an affidavit was made against one James Harper before a justice of the peace in district No. 4 of Claiborne
It will be noted that nowhere in the bond is it specified that it was given in pursuance of any judgment of the .justice requiring same to be given, nor does the bond state on whom the assault was committed. The record does not show anywhere the authority of the sheriff for holding the prisoner, or by virtue of which he was authorized to take the bond. It does not appear that the sheriff had any mittimus from the justice. Of course, the absence of these things in no way affects the validity of the bond; but, if they were in the record, they might serve to identify the bond given with the offense which Harper was subsequently indicted for, thus showing that the bond was intended to secure the appearance of Harper for some offense in connection with John Haywood, though the charge at the time the bond was given for a much lighter offense than that for which he was subsequently indicted. In this condition of affairs, and on the 19th day of June following, the grand jury indicted Harper for murdering one John Haywood. Now, it will be seen that the assault charged in the affidavit in the justice court is charged to have been committed on John Haywood, and the indictment subsequently returned charges the murder
At the June term, 1905, the defendant and his bondsmen wrere called, and, the defendant failing to appear, a forfeiture was taken on his bond, and a scire facias issued. The scire facias recited that “Whereas, James Harper, principal, and -James H and H. IT. McOaleb, sureties, entered into bond before the sheriff on the 12th day of April, agreeing to pay the state of Mississippi $1,000; unless Harper, the principal, should appear at the June term, 1905, of the circuit court, and remain from ■day to day and term to term, until discharged by law, to answer the charge of assault with intent to kill; and, whereas, on the 22d day of June, 1905, at the June term of court, Harper, having been called, came not, but made default, and the sureties, having been duly called to come into court and bring the body of Harper to answer the charge, came not, but also made default: It is thereupon considered by the court that the state have and recover from Harper and his sureties the "amount of bond,” etc. After forfeiture was taken, and the parties duly summoned into
The question in this case is not as to whether this was a valid bond. If this bond had the effect of releasing Harper from custody on any charge known to the law, then its validity is placed beyond question by Code 1906, § 1466, which provides that: “All bonds, recognizances, or acknowledgments of indebtedness, conditioned for the appearance of any party before any court officer, in any state case or criminal proceeding, which shall have the effect to free such party from jail or legal custody of any sort, shall be valid and bind the party and his sureties, according to the condition of such bond, recognizance, or acknowledgment, whether it was taken by the proper officer or under circumstances authorized by law or not, or whether the officer’s return identify it or not.”
' The validity of the bond is one thing, and its identity, when placed in suit for an alleged breach, with the crime charged against a principal in default of appearance, is another thing. Before the conditions of liability under the bond attach, the failure of the principal to appear in accordance with its terms must be a failure on the principal’s part to appear for trial on the identical offense he stood charged with, and for which he was held in custody when the bond released him, or for some lesser or graver crime resulting from and growing out of the same criminal act, either not known at the time or not charged in the
There is no question as to the validity of this bond. If there has been a failure of the party to appear, the bond is just as good today as it was the day it was taken. Still it was necessary for the state to offer some kind of proof, either oral or record, to connect the bond on which forfeiture was taken with the offense for which the party was subsequently indicted, since there was nothing in the face of the bond or in the record which could possibly connect it in any way. 1
Reversed and remanded.
Dissenting Opinion
delivered the following dissenting opinion:
One James Harper was arrested and carried before a magistrate court, and put under a bond to appear before the circuit court to answer the charge of “assault to kill,” as it is expressed. In the meanwhile, before the grand jury convened, the assaulted person died, and the grand jury, of course, returned an indictment for murder against Harper. The bond in this case was approved April 12, 1905, by O'. S. Magee, sheriff, and Harper, of course, released; the bond being returned into court. The affidavit had been made before B. W. Smith, justice of the peace, on April 11, 1905. It will thus be seen that the bond was executed and approved, and the prisoner released, the day after the affidavit was made against the prisoner.
There is no pretense in the record that this bond was not given to secure his release because of the offense charged against him in this same transaction wherein Haywood was killed. There is nothing in the record to suggest any doubt whatever
I cannot see, for the life of me, wbat more there is in tbis case. The statute was made to cut off all such technical defenses, whenever tbe one thing appeared, to wit, that tbe bond, however informal, bad the effect of securing tbe release of tbe prisoner. It is perfectly manifest, from tbis record, tbat it-did secure tbe release of this man, Harper, and tbat it was given to secure bis appearance to answer for an offense growing out of tbe very transaction in which Haywood was killed. It is very wpll to recur to tbis statute, and set it out in full. Wbat is its language ?
“1394. All bonds, recognizances, or acknowledgments of indebtedness, conditioned for tbe appearance of any party before and court or officer, in any state case or criminal proceeding,*153 which shall hare the effect to free such party from jail or legal ■custody of any sort; shall be valid and bind the party and his sureties, according to the condition of such bond, recognizance, ■or acknowledgment, whether it were taken by the proper officer or under circumstances authorized by law or not, or whether “the officer’s return identify it or not.
“1395. All bonds and recognizances taken in criminal cases, whether they describe the offense actually committed or not, ■shall have the effect to hold the party bound thereby to answer to such offense as he may have actually committed, and shall be valid for that purpose, until he be discharged by the court.”