48 La. Ann. 774 | La. | 1896
The opinion of the court was delivered by
This appeal is by the State from the judgment setting aside the forfeiture adjudged against the surety on the bond of the accused to secure his appearance before the District Court to answer for the charge of taking, carrying away and concealing from J. H. merchandise of specified value, the bond conditioned also that the accused would not depart the court without leave.
The bond was given to discharge the accused from arrest on the warrant of the magistrate. At the ensuing term of
It was, we presume, the intention to bind the accused and his surety for the appearance of the accused to answer the charge of larceny. The bond surely fails in describing that or any other offence. Of course, it will not be maintained the affidavit on which the magistrate issues his warrant or the appearance bond he exacts shall be framed with the precision of indictments, and it seems to us that the defence of a' surety whose bond has obtained the discharge of the accused should be sparingly admitted when based on the inexact frame of the bond. The surety knew there was a charge pending which would come before the grand jury, and the surety also knew the object of the bond was to secure the appearance of the accused to answer the indictment that might be preferred. The bond, besides undertaking to prescribe the offence, plainly expressed the obligation that the accused would appear before the court and not depart without its leave. This part of the bond, at least, must have its effect. There is a line of decisions that bonds taken without legal authority create no obligation. State vs. Gilbert, 10 An. 532; State vs. Williams, 37 An. 200; State vs. Longineau, 6 An. 700. No question of that kind can arise in reference to the bond received by the magistrate. Constitution, Art. 179; R. S., Sec. 1010. We think, too, that while there have been decisions holding the surety discharged by defects in describing the offence, the reason and tendency of at least some of the authorities is to preclude such objections. State vs. Hendricks, 40 An. 722; State vs. Ansley, 13 An. 298. In our view the surety can not be allowed to escape liability in this case for the inexact language of the bond, especially as it contained the condition the accused would not depart without leave.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is further ordered, adjudged and decreed that the State of Louisiana do recover from Charles Arledge and A. M. Posey, in solido, the sum of two hundred dollars, with legal interest, and that the costs be paid by the ap-pellees.
