Russell v. State

45 Ga. 9 | Ga. | 1872

Montgomery, Judge.

Russell entered into bonds with Woodbright and others as sureties, to answer to various misdemeanors for which he had been indicted in Terrell Superior Court. The bonds were forfeited, scire facias issued, and the scire facias cases were put upon the motion docket. At the return term of the scire facias the cases were called, and the sureties moved to continue, and, for cause, offered to show, by physicians of standing, that their principal was at home too sick to appear. The Court refused to permit them to make the showing, and ordered final judgment to be entered, which was done. During the term, and while a jury was still in attendance, the sureties brought their principal into Court, surrendered him to the sheriff', tendered all costs, and moved to vacate the judgment. The Court refused the motion.

We think there was error in both rulings. The object of the law in requiring bail is to insure the presence of the accused. If he does not appear at the first term, his sureties are then called on by scire facias to produce him at the second. If they do so, at any time, before the case is regularly reached in its order on the criminal docket, no final judgment can be entered. If the accused dies before final judgment, the sureties are excused: Code, section 4648. Why? Because it has providentially become impossible to comply with the condition of their bond. Is it not equally so, for the time, at least, if he is too sick to appear? In all cases providential absence of a party or counsel is a good ground for continuance, if the case cannot be safely tried without their presence: Code, 3473, 3474. In the present case the sureties could certainly not go to trial safely without the presence of their principal. With his presence their defense was complete; without it they had none.

We think the same reasoning applies to the motion to vacate the judgment, the facts showing that there was no negligence on the part of the sureties in failing to avail themselves of the defense before the judgment was rendered. As already remarked, the object of the bond is to secure the attendance of the principal, not to raise money for the State. She, therefore, excuses a compliance with the condition when it becomes, from providential cause and without fault of either principal or sureties, impossible to do so. There seems to be no difference in principle between this case and Shannon vs. Roosevelt, Hyde and Clarke, 17 Georgia, 88.

Judgment reversed.