114 Ala. 11 | Ala. | 1896
The sureties, when the obligation-of bail is assumed, become in'law the jailers of their principal. — Cain v. The State, 55 Ala. 170; Bearden v. The State, 89 Ala. 21; 3 Am. & Eng. Encyc. of Law, (2d ed.), 653. “The undertaking of bail binds the parties thereto, jointly and severally, for the appearance of the defendant, on the first day of the court, from day to day of such term, and from day to day of each term thereafter, until he is discharged by law.” — Code of 1886, § 4427 ; and, “Bail may at any time before they are finally discharged, exonerate themselves by surrendering the defendant.” — Code of 1886, § 4429. Being the jailers of their principal, of his own choosing, the spirit of the obligation of the sureties is, that they will as effectually secure the appearance of the defendant, and put him as much under the power of the court, as if he were in the. custody of the law. The recognizance is binding on the distinct obligations, that the principal shall appear at the term of the court designated, to answer the charge against him, to abide the judgment of the court, and that he will not depart and leave the court, until legally discharged.— 3 Am. & Eng. Encyc. of Law, (2d ed.), 710, 714. As a rule sureties on a bail (bond can only be discharged from liability by the pei’formance of the conditions of the recognizance entered into by them, unless that becomes im
When a party is out on bail for one offense, it cannot be allowed that he cannot be ai’rested by the State for another crime, for the reason that he is in the custody of his bail on the other criminal charge. Such subsequent arrest and imprisonment thereunder is no discharge of his bail. The writ of habeas corpus to bring the prisoner up for trial, or to be surrendered up in discharge of the bail, furnishes an adequate remedy. — Ingram v. The State, 27 Ala. 17.
Besides, the fact that the defendant was in jail, as the result of his having been found guilty of murder in the other case against him, offered no obstacle to the sureties to surrender him at any time before he made his escape. And, at the term of the court at which he should have appeared to answer to the other offense, but failed, and a forfeiture was sought therefor against his bail, he was not in the custody of the State, — he had escaped from jail, was at large, and there was nothing to prevent his appearing in accordance with the terms of his bond, nor were his sureties deprived by the State of the privilege of recapturing and surrendering him. In contemplation of law, the moment he escaped, he ran right into the custody of his bail, and they were charged with the responsibility of keeping and producing him at the trial. It is not necessary to presume they aided him to escape, to discharge their obligation; but if they did not, they present no better excuse for discharge from liability, than if they had done so. Their excuse, as made, we are unable to approve. Authorities supra; Allee v. The State, 28 Tex. App. 531; Wheeler v. The State, 38 Tex. 173 ; Tedford, v. The State, 67 Miss. 363 ; State v. McAllister, 54 N. H. 156; Bishop & Randolph v. The State, 16 Ohio St. 419.
The court below erred in discharging the sureties on said bond, and its judgment is reversed and the cause remanded.
Reversed and remanded.
