23 Ill. 77 | Ill. | 1859
A bill of indictment was found against the prisoner while he was in jail on a preliminary mittimus. The amount of bail was fixed by the Circuit Court, when the court continued the cause and adjourned, while the prisoner was still in the custody of the sheriff, he not having offered the requisite bail. After the adjournment of the court, the prisoner tendered to the sheriff sufficient surety, whose recognizance was taken by the sheriff in due form, and the prisoner discharged. He failed to appear at the subsequent term, according to the exigency of the recognizance, which was regularly forfeited, and a sci. fa. issued, upon the return of which, the defense was made that no writ had issued from the Circuit Court to the sheriff, commanding him to apprehend the prisoner, after the indictment was found, and that for the want of such writ the sheriff had no authority to take the recognizance. We are not inclined to impute so absurd an intent to our law, as to require a warrant to be issued to the sheriff, commanding him to arrest a prisoner already in his custody, before he can admit him to bail. The object of a warrant is in general to arrest, and not to discharge a prisoner. When the prisoner is already in custody, such a writ has no office to perform. We must look at the practical common sense of a statute to comprehend its spirit and mean-The objection is too frivolous to bear discussion.
The judgment must be affirmed.
Judgment affirmed.
