48 So. 360 | Ala. | 1909
This is a proceeding by scire facias against bail on a forfeited recognizance. The defendants, in answer to the scire facias, showed that their principal, at the term of the court previous to the one at which the judgment nisi was entered, was tried and convicted of the offense against which, for his enlargement, the bond was given. The principal was present in court when the verdict of guilty was returned and the judgment of conviction thereupon was entered, and at that time he was taken into custody by the sheriff and placed in jail under said conviction. At a subsequent day during that term, and while he was so in custody, the court, on the defendant’s motion, set aside the verdict and judgment of guilt, and granted defendant a new trial, at the same time ordering that defendant be held
In Ex parte Williams, 114 Ala. 29, 22 South. 446, it was held that upon the reversal of a judgment of eonvietion the defendant, who at the. time of his conviction and sentence Aims out on bond, was not entitled to release from custody by virtue of that bond; and a petition for habeas corpus to be released on the bond was refused. In the course of the opinion in that case the court said: “Whenever a party is convicted and sen-' tenced, he is no longer in the custody of his bail, but is in the custody of the proper officer of the law, and the bail are thereby discharged by the operation of law without a formal order to that effect.” Upon the word “sentenced,” or upon the fact that the court pronounced sentence on the defendant, it is sought by the Attorney General to differentiate that case from the one in judgment. The court, further on in that opinion, said. “The mere appearance of the defendant at court for trial, or his presence during trial, will not operate to discharge the bail. The obligation of a proper bail bond binds the sureties, at least, until after the verdict of the jury; but, when the sentence of the laAV is pronounced, the officer of the law is charged with its due execution. The bail have no further control over the custody of their principal, and cannot be longer held responsible.”. It was also said: “The bail bond became functus by the trial and sentence.”
Hawk’s Case, 84 Ala. 466, 4 South. 690, was one where the defendant in a criminal case, on bond, absconded during the progress of the trial and before the jury re
In this case the imincipal was convicted of a felony. He was present at the rendition of the verdict and judgment of the court on the verdict; and, this being true, it was the duty of the sheriff to take him into custody. While there was no express order of the court that he
The defendant having been legally withdrawn from the custody of his bail, the question then is: Did the granting of a new trial and the making of the order by the court that he be held under the bond revive the sureties’ liability? We can see no difference in principle between the status of sureties on a bail bond after the judgment of conviction against their principal has been reversed, and that after the judgment has been annulled on motion for neAV trial. The judgment in either case is set aside and held for naught. — State v. Glenn, 40 Ark. 332; State v. Murphy, 10 Gill & J. (Md.) 365. It was the taking of the prisoner from the custody of the bail, and transferring him to that of the sheriff, that released the sureties (State v. Murmann, 124 Mo. 502, 28 S. W. 2); and, being released, the court could not, without their consent, revive their liability by simply order
There is, under the facts of this case, no liability against the sureties on the bond, and the circuit court erred in not so holding. The judgment of the circuit court is reversed, and judgment Avill be here rendered for the defendants.
Reversed and rendered.