94 A. 368 | Conn. | 1915
The defendant Herting, on February 9th, 1910, was a sergeant of police for the city of New Britain and the acting captain of police, in charge of the police station in the city and of the prisoners *300 confined therein at that time. The plaintiff was arrested by one Skelly, a policeman of the city, upon a warrant issued under a complaint charging the plaintiff with a breach of the peace. The arrest was made in the evening, when the Police Court was not in session, nor was the clerk or judge of the court present at the police station when Skelly brought the plaintiff to the station. Skelly returned the warrant to the drawer used by the clerk as a depositary for warrants and court papers.
The plaintiff applied to Herting to fix bail for his appearance in the Police Court, and Herting, as acting captain of police, fixed the bail at $50, and the plaintiff, without objection to the form of the bond or its amount, voluntarily deposited $50 in cash with Herting. This was a reasonable and sufficient bail. Thereupon Herting released the plaintiff. He failed to appear at the next session of the court, and the court directed the bail to be forfeited, which was done in open court. The next day the plaintiff appeared in court and moved that the court open the forfeiture on the ground that he had a justification for failing to appear, but the court denied the motion. Herting turned over the $50 to the clerk of the court before the bond was forfeited, and he, after the forfeiture, paid it over to the city of New Britain, in whose treasury it still is.
Upon the trial the plaintiff claimed that the so-called bond or bail was no bond or bail at all, since it was obtained under duress of imprisonment, and since the plaintiff had not been admitted to bail by the Police Court. The overruling of these claims is assigned as error.
The arrest of the plaintiff was lawful. He was properly confined in the police station, which was then in charge of Herting. Upon the plaintiff's request Herting fixed the bail and accepted a cash bail, *301 and the plaintiff voluntarily gave this. After the forfeiture of the bail the plaintiff voluntarily appeared in court and moved that the forfeiture be opened, not because the bail had been given under duress, nor because it had not been fixed or taken by competent authority, but because he had justification for failing to appear when the bond was forfeited.
Granting bail and fixing its amount is a judicial orquasi-judicial function. This may be done by the court having cognizance of the case or by other proper officer duly authorized by law. Bail taken by an unauthorized or disqualified person or officer is void. Commonwealth
v. Loveridge,
But it does not follow that the plaintiff can recover the cash bail he deposited upon his own request in order to obtain his release from a just confinement upon a lawful arrest. The plaintiff requested the sergeant to do an unlawful act, to fix his bail and release him from confinement, when the sergeant was without authority to do either. The sergeant complied with the unlawful request and, in violation of law, released the plaintiff, and thereby obstructed justice. Both the plaintiff and the sergeant have participated in an illegal act. The law presumes the plaintiff knew that he was soliciting and engaged in an unlawful act. The giving of the cash bail was the moving consideration for the unlawful release. We are now asked to relieve the plaintiff from the effect of his unlawful act, which has contributed to the breach of the law in obstructing justice through the procuring of his release from a lawful confinement. The plaintiff was in pari delicto
with the officer of the city. The law will leave him where he placed himself, and our courts will not aid him to recover the cash bail which was the moving cause of his illegal release. Three authorities have come to our notice from other jurisdictions which are substantially like the case at bar and uphold the application of the principle we invoke in this case.Smart v. Carson,
There is another aspect of this case which leads to the same result. An accused may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court. State v. Brockhaus,
There is no error.
In this opinion THAYER and WHEELER, Js., concurred. PRENTICE, C. J., and BEACH, J., concurred in the result, but dissented from so much of the opinion as holds that the bail was not properly allowed and fixed.