134 Tenn. 640 | Tenn. | 1915
delivered the opinion of the Court.
Russell was arrested under a magistrate’s warrant on a charge of murder and hound overto the criminal court. The bail bond was fixed at $1,000, and signed by appellants as .sureties. The bond was conditioned that Russell appear at the next term of the criminal court and not depart the court without leave. At the next term an indictment was returned; and at a succeeding term Russell failed to appear, when default was taken and a conditional judgment rendered against the sureties.
An answer to á scire facias was later filed by the sureties, setting out, among other things, that after the indictment was found the clerk of the court issued a capias for Russell which was placed in the hands of
The capias shows by indorsements thereon that it was so issued by the clerk, and served; but the record discloses no order of the court therefor.
The trial judge overruled a motion of the sureties to quash the scire facias and discharge them from liability; and judgment was entered, from which they have appealed.
The only authority for the clerk to issue a capias after indictment is when the defendant is not in actual custody or when he has not been bailed. Code, Shannon, section. 7065.
But the court, after the defendant has given bail, may order him to be again arrested, when upon the finding of an indictment the court deems the bail theretofore taken insufficient, and for other causes, but the order for the arrest and recommitment, it is provided, shall recite generally the facts upon which it is founded. Code, Shannon, section 7149 et seq.
A rearrest of the defendant, after bail has:once been taken, is not lawfully made on a capias issued by the clerk following indictment, unless ordered by the court. Poteete v. State, 9 Baxt. (68 Tenn.), 262, 40 Am. Rep., 90; McQueen v. Heck, 1 Cold. (41 Tenn.), 213.
The State therefore insists that the rearrest in this case was, so far invalid as that it did not operate to discharge the sureties on the bail bond.
The weight of authority is with this contention.
The issuance of a capias without authority, or as “a work of supererogation,” and a subsequent arrest of the defendant thereunder, followed by his escape, does not operate to release or exonerate his sureties. This was held on facts identical with those in the pending case. Chappell v. State, 30 Tex., 615. Also, when the committing justice of the peace, on the supposition that sureties taken were insufficient, caused a rearrest. Ingram v. State, 27 Ala., 17, and see for an extreme case, People v. Moore, 2 Doug. (Mich.), 1; Foster v. State, 38 Tex. Cr. R., 372, 43 S. W., 80.
Seemingly the only decision tending to the contrary is that of Medlin v. Commonwealth, 11 Bush (74 Ky.), 605, where it was said:
“It is not necessary to inquire whether the second arrest was or not authorized by law. It is sufficient that the commonwealth, through its judicial and min-sterial officers, disregarded the rights secured to King and his sureties by the execution of the bail bond, and that it undertook to hold the accused in custody. Failing in this undertaking, it seems to us clear that it cannot now hold appellants responsible for that failure.