State v. Dunbar

10 La. 99 | La. | 1836

.Mathews, J.,

delivered the opinion of the court.

In this case judgment was rendered in favor of the state, on motion of the district attorney, based on a recognizance or bail bond, in which M‘Knight was principal and Dunbar security for the appearance of the former at a term specified, to answer to certain criminal charges found against him by indictment. From this judgment the defendant appealed,

Where the ae-cused in acnmi-nal prosecution hnTbaii, after the recognizance was forfeited,, but before final baiftond.'antu ■nolleprosejuien-tered as to the charges against Held, that both surety'‘were exonerated from ihebanbond.m men the ac-after- forfeiture before judgment on the bond, it is the duty of the district attorney, pray the courtto order him into custody.

appears from the facts, as found in the record, that on the day fixed in the bond, the defendant did not appear, that ... 11 7 he and his bail were’ regularly called and the bond was declared to be forfeited on the minutes of the court. SubseqUently and before the defendant was put on his trial, he appeared in court, for the double purpose of releasing his bail fr°m bis obligations as surety and to stand his trial. A nolle Prose<lw* was afterwards entered by the district attorney, in relation to the criminal charges against the defendant. All these proceedings took place before any judgment was rendered on the motion against him and hi's surety. The forfeiture alleged was not absolute, but similar to what is known in the common law under the term estreat, which signifies extracted from the records of the Criminal Court, to serve as . . . , . a foundation against the accused and -his surety, for a scire facias, to which they were allowed to plead other matters, calculated to exonerate them from their obligations. The , , . . , rule with notice to show cause, authorized by our laws, against the accused and his bail, stands in the place of the scjre facias of the common law, to which may be pleaded all J 3 . r things which tend to exonerate the parties called on to show cause; and if legally established by evidence, they must be discharged from their obligations,

We are of opinion, that the appearance of the defendant, for the purposes as above stated, was sufficient to annul the bail bond or recognizance, and release the parties to it. When he thus appeared, it was the duty of the prosecuting attorney, either to proceed immediately to his trial, or if this could not be done, pray the court to order him into custody. r J „ . . . . „ / The present case is more favorable to the pretensions of the than that of the State vs. Hay et al., decided at Raton Rouge term of the court, held in 1834. See 7 Louisiana Reports, 78.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be avoided, reversed and annulled, and that judgment, be here entered for the defendants, &c. . ' '