60 Colo. 202 | Colo. | 1915
delivered the opinion of the court.
Carlton M. Hedrick was convicted of embezzlement in the District Court of the City and County of Denver. To the judgment entered thereon he prosecuted writ of error
Without regard to the controverted allegations of the pleadings, the admitted facts contained therein exonerate the sureties from all liability upon the bond. Upon the release of a person on bail he is, in contemplation of the law, in the custody of his sureties; and the consideration of the bond, accruing to the sureties, is his freedom from any other 'custody. The liability of the sureties is based upon their legal authority over the person bailed. If they desire, they may, with or without a reason therefor, at any time before an execution is ordered against them because of the forfeiture of the bond by their principal, seize and surrender him to the sheriff of the county wherein the bond shall have been taken, and the sheriff, if at the "same time there is delivered to him a certified copy of the bond, cannot refuse to take the principal into custody, and in writing acknowledge such surrender. § 1948 Rev. Stat., 1908. If Hedrick, the principal in the bond, had not appeared in the District Court in conformity with his obligation, The People might have had a forfeiture declared, and a scire facias issued to and served upon the sureties, and if no action on the part of The People had intervened, and the sureties failed to produce the principal, a judgment, absolute against them, could have been entered. The People, however, in no wise attempted to follow this procedure. On the contrary, without attempting to declare a forfeiture of the bond, they acted affirmatively in the premises, and put it out of the
Judgment affirmed.
Gabbert, C. J., and Bailey, J., concur.