The opinion of the court was delivered by
Valentine, J,:
The defendant was tried and convicted upon a charge for feloniously aiding a prisoner to escape. It seems that one Joseph Lowe was charged with the offense of assault with the intent to commit murder. He entered into a recognizance for his appearance at the next term of the district court. Afterward, at his own request, he was delivered by his sureties to the sheriff of the county, and the sheriff gave the sureties a receipt therefor. The sheriff then delivered him into the custody of one John Nugent, to be guarded, and by agreement Lowe was to pay Nugent for his services. While in the custody of Nugent he escaped, and the defendant Beebe assisted him to escape by furnishing him with a horse with which to ride away. From the time Lowe entered into said recognizance up to the time he escaped, neither the sureties, nor the sheriff, nor Nugent, ever had any warrant of any kind, or any copy of the recognizance, or any other instrument in writing, for the detention, imprisonment, or custody of said Lowe. Under these circumstances, was the escape a felony ? This is a difficult question. It is one upon which good lawyers may differ. It is one upon which we know that good lawyers do differ. We have therefore given the question a very careful consideration. We have searched the text-books, and the reports, for something to throw light upon the subject, but have found nothing. The real question is, whether Lowe escaped from lawful custody. Now, there is no ambiguity in the language of the statute upon this subject. The statute plainly enough prescribes what shall be done in such cases in order to place the person charged with the offense in lawful' custody. But the difficulty arises in cases where the statute has not been fully complied with. May the *594accused be in lawful custody, although the statute, prescribing how he shall be placed in such custody, has not been complied with ? Lowe was at liberty on bail, and no one had any right to restrain him of his liberty except in a particular manner. The statute provides that “When the surety desires to surrender his principal, he may produce [procure] a copy of the recognizance from the clerk, by virtue of which the bail or any person authorized by him may take the principal in any county within the state." (Crim. Code, § 148.) The sureties in the present case did not comply with this statute. They procured ño copy of the recognizance from the clerk. The principal however voluntarily surrendered himself to them. But still it can hardly be questioned that if the principal at any time before he was delivered to the sheriff had refused longer to remain in the custody of his bail, and had chosen to depart therefrom, he could have done so- legally, and without committing any offense. They could hold him as long as he voluntarily chose to remain with them, but when he chose to depart therefrom they could hold him no longer. After his voluntary surrender to his bail they transferred their custody of him to the sheriff, and, as we are inclined to think, they transferred nothing more. Then had the sheriff any more right to hold said principal in custody than his surety had ? While he chose to remain with the sheriff, he was of course in the lawful custody of the sheriff; • but when he chose to depart therefrom he was no longer in the lawful custody. The statute provides that “ The bail must deliver a certified copy of the recognizance to the sheriff with the principal; and the sheriff must accept the surrender of the principal, and acknowledge it in writing.” (Crim. Code, §150.) Now the bail did not deliver to the sheriff any certified copy of the recognizance; and the sheriff had no such copy, nor any other written authority, by which to hold said Lowe when he escaped from Nugent. Even if we should be of the opinion that the bail impliedly (they did not do so expressly,) authorized, the sheriff to procure a certified copy of said recognizance, still the sheriff did not procure the same. *595Then what was there to prevent Lowe from escaping, if he chose to do so ? There is no authority anywhere given to the sureties on a criminal recognizance to arrest their principal, or to hold him in custody, or to deliver' him to the sheriff, without a copy of the recognizance; and there is no authority anywhere given to the sheriff to receive such principal, or to retain him in custody, unless he is also furnished with a copy of the recognizance. If the sheriff can hold a person in custody under such circumstances, without such copy, it is by virtue of some authority not found in the statutes. Under our system of criminal jurisprudence we are of the opinion that no person can be deprived of his liberty on account of some criminal charge against him except by virtue of some written authority therefor, except in cases where the accused may be arrested before any warrant has ever been issued. But even in cases where the accused may be arrested without warrant, he must be immediately taken before a magistrate, and a complaint be filed against him, and a warrant issued wherewith to hold him, or the custody of him would become unlawful. But where a person has been arrested on a criminal charge, and afterward set at liberty on a recognizance, then he is as much entitled to his liberty as he ever was before, and cannot again be deprived of his liberty except by following the law. There can be no excuse for again arresting him, or holding him in custody, without written authority. The sureties may take a certified copy of the recognizance when they execute the same; or they may require ample security from their principal before they become his bail. They have ample time to take every precaution necessary. Hence, we think they ought to follow the law. Before a man can be deprived of his liberty, even the forms of law should be complied with. In such' cases even the forms of law become matters of substance. And it would hardly seem that-a man should be charged with committing a felony for merely failing to recognize certain proceedings as valid and binding, where the proceedings themselves are not in conformity to law. And of course, if Lowe did not commit a felony in *596escaping, Beebe did not commit a felony in assisting him to escape. We have come to the conclusions we have in this case with some doubts; but our conclusions are, that the sheriff could not legally hold Lowe in custody against his will, except by having a certified copy of the recognizance as the law requires, and therefore that Lowe did not commit a felony in escaping, and therefore that Beebe did not commit a felony in assisting him to escape.
The judgment of the court below is reversed, and cause remanded for further proceedings.
Brewer, J., concurs.
Kingman, C. J., dissents.