State v. Horn

19 Tenn. 473 | Tenn. | 1838

Turley, J.

delivered the opinion of the court.

A sheriff, in this state, has no power to take bail for the appearance of prisoners committed for offences, except such as is given by statute.

The act of 1831 makes provision, that the sheriff of the county may receive bail, where the accused has been committed for want of security; but it does not authorise him to do so in any other case; and out of abundant caution, prohibits bail, being taken where the examining magistrate shall have determined the offence not bailable.

In the present case the bond of recognizance taken by the sheriff, makes a different case from that, which is provided for by' the statute. It recites, that the offender had been committed, because the justice did not know whether the of-fence was bailable or not. Now the statute gives no power to the sheriff to adjudge the question, he is a mere ministerial officer, and can only act where the committing magistrate has held the offence to be bailable, and committed for want of bail.

The sheriff then had no power to take the bond of recognizance in this case, — it is void, and the court below therefore committed no error in refusing to pronounce a judgment thereon.

Let the judgment be affirmed.