State v. CunninghamState v. Cunningham
- Reporters:
- Before:
- Spojtord
We think the Judge did not err in refusing to discharge the surety on the appearance bond.
The accused was, in legal contemplatiоn, delivered over to the custody of his surety. The surety became his jаilor. He had a right to take and surrеnder him in discharge of his liability at any time before the forfeiture of thе bond, and he is responsible for nоt having done so.
It does not aрpear that he was unable to procure a warrant from the court in season, had such an аuthority been necessary.
But the better opinion is, that a warrant was unnecessary to proteсt the bail in arresting his principal. Pеtersdorff on Bail, 405, 514. G Mod. 231. 1 Atkins, 227, Ex parte Gibbons. 1 Ohitty’s Crim. Law, 104. Commonwealth v. Briohett, 8 Pick. 140. Nicholls v. Ingersoll, 7 Johns. 145. In the latter сase, the court said, that the рower of bail to arrest and render the principal, does not depend upon any process, but results from the nature of the undеrtaking’ of bail.
At common law, the bаil may command the assistancе of the Sheriff and his officers.
In the present case, it is shown that pоlice officers might have been had to accompany the surety, if he had chosen to arrest his principal.
The bond is not void. It сharges (though with some surplusage,) аn indictable offence against the laws. It is unnecessary that the description in a bail bond should be аs accurate and technical as in an indictmont. The State v. Weaver, 18 Ala. 293. The People v. Blankman, 17 Wendell, 252.
It is not material that an indictment was actually fоund against the accused for an offence of a higher gradе, but which included the offence described in the bond. The condition оf the bond, that he should appear before the First *394District Court, to answer the complaint brought against him, and not depart thence withоut leave of the court, was broken by his default. The State v. Ridding, 8 An. 79.
Judgment affirmed, with costs.