People v. Penniman

37 Cal. 271 | Cal. | 1869

By the Court, Sprague, J.:

A party arrested upon a bench warrant issued upon an indictment for a bailable offense, which warrant contains an order that the accused be admitted to bail, with the amount of such bail as fixed by the Court from which the warrant issued indorsed thereon by the Clerk of such Court, is entitled to his release from custody upon the execution of a written recognizance, in proper form, in the prescribed sum, by two sureties, and their justification as to qualifications before any magistrate, as prescribed by sections five hundred and seventeen, five hundred and eighteen, and' five hundred and nineteen of our Criminal Practice Act. When such recognizance has been executed before a magistrate, and the sureties so executing have, by affidavit before him, justified to their qualifications required by section five hundred and seventeen, he may, in his discretion, proceed to further examine such sureties on oath as to their individual qualifications, and if he do not so proceed, it will be presumed that he was satisfied upon the question of their qualifications and sufficiency as sureties by their affidavits. Having taken the justification of sureties in number required by law to the amount fixed by the Court issuing the warrant, it is the duty of the magistrate to immediately deliver the bond to the officer having the person in custody, and thereupon it is the duty of such officer to release the person and return the warrant with the bond to the Clerk of the Court from which the warrant came. The responsibility of the sureties upon the bond attaches 'the moment the person is so released, and their liability is fixed by a breach of its conditions and forfeiture ' declared and entered by the proper Court. (People v. Wolf, 16 Cal. 385.)

We are not aware of any statute requiring the magistrate before whom a bail bond is executed and justified, or any other officer, to indorse thereon his approval. Such written indorsement or signified approval is clearly not a prerequisite to the validity of a statutory recognizance or the liability of the sureties. “The justification forms no part of the contract of the sureties, and in no manner affects their liability.” (People v. Shirley, 18 Cal. 121.)

In this case all the requirements of the statute relative to the form and execution of the recognizance and the justification of the sureties seem to have been substantially complied with, and we find no error in the proceedings of the Court below.

Judgment and order affirmed, and remittitur allowed forthwith.