173 P. 349 | Ariz. | 1918
H. B. Russell was charged with the crime of selling intoxicating liquor and, waiving his preliminary examination, was held to answer by a committing magistrate. Bail for his appearance was put in by the defendant executing a written undertaking with J. B. Merck and L. D. McCartney, the appellees, as sureties. The undertaking was acknowledged before the magistrate and returned to the clerk of the superior court as required by law. The undertaking, omitting the acknowledgment, is as follows:
“In the Justice Court, Fourth Precinct, County of Cochise, State of Arizona.
“An order having been made on the 24th day of March, A. D. 1915, by R. S. MacLay, a justice of the peace of Cochise county, that H. B. Russell be held to answer upon a charge of selling intoxicating liquor, to-wit, whiskey, upon which he has been admitted to bail in the sum of five hundred and no-100 ($500.00) dollars, we, J. B. Merck, by occupation merchant, and L. D. McCartney, by occupation merchant, resi*578 dents of Douglas, Arizona, and property holders within the state of Arizona, hereby undertake that the above-named H. B. Russell will appear and answer- the charge above mentioned in whatever court it may be prosecuted, and will at all times bold himself amenable to the orders and processes of the court; and, if convicted, will appear for judgment, and render himself in execution thereof, or if he fails to perform either of these conditions, that we will pay to the state of Arizona the sum of five hundred and no-100 ($500.00) dollars.
“Witness our hands and seals, this the twenty-fourth day of March, A. D. 1915.
“H. B. RUSSELL,
“J. B. MERCK,
“L. d. McCartney.”
The defendant was convicted of the charge in the superior court, and, failing to appear and render himself in execution of the judgment, the superior court directed that fact to be entered upon its minutes, and the recognizance was thereupon declared forfeited. No move being made to discharge the forfeiture, and the statutory period of 20 days having elapsed, the county attorney commenced this action against the bail upon their recognizance. • The appellees pleaded, and it is substantially the only defense to the action, that the undertaking was put in before the defendant was held to answer by the magistrate. They admit executing an undertaking for the appearance of Russell at the preliminary examination, but contend that their duties and obligations end there, and deny that any undertaking for the appearance of said defendant, after being held to answer, was executed by them. It appears from an entry dated March 30, 1915, made in the docket of the magistrate, that the defendant waived his preliminary examination, was held to answer and was released on $500 bail, with J. B. Merck and L. D. McCartney as sureties. Another entry, dated March 24, 1915, recites that the defendant appeared before the magistrate, and his preliminary examination was postponed indefinitely; that defendant was released on $500 bail, with J. B. Merck and L. D. McCartney as sureties. The answer alleges that the appellees executed but one undertaking, which was for the defendant’s appearance at the preliminary examination, and that this undertaking had been discharged. They argue that this suit is upon the discharged undertaking, which ivas executed on March 24,
Judgment reversed, with direction to enter judgment in favor of the plaintiff as prayed for in its complaint.
ROSS and CUNNINGHAM, JJ., concur.