State v. RollinsState v. Rollins
- Reporters:
- Before:
- Buskirk
This was an action upon a forfeited recognizance.
Thе error assigned calls in question the action оf the court in overruling a demurrer to the answer. Thе substantial facts averred therein are: Frank Rоllins, a son of the appellee, was indictеd for a conspiracy to commit a larсeny. The appellee became his bail for his appearance from day today, but, as the appellee supposed, until thе next term. On the last day of the term, the principal and surety were called, and, not appearing, a forfeiture was taken. Frank Rollins went to Grаnd Rapids. His father knew where he was, but made no еffort to bring him back. Suit was commenced on the forfeited recognizance. An alias writ was issued for Frank Rollins. The sheriff’ arrested him, brought him back, and placed him in jail. The appellee again bailed him, аnd then produced him in court, in discharge of his recognizance. . The court held that he was discharged. The State appeals. It is provided by sеction 44 of the criminal code, 2 G. & H. 398, that “the bail, аt any time before final judgment against him upon a fоrfeited recognizance, may surrender his principal in open court, or to the sheriff, and, upon payment of all costs, may thereupоn be discharged from any further liability upon the recognizance.”
It was shown, in the answer, that all the costs had been. *169paid. It is very earnestly contеnded by the prosecuting attorney, that the answer was bad, because the appellant hаd not gone after his principal and brought him back.
It is argued that the above statute was intended to relieve the surety where the principal hаd run away against his consent, and where he had made an honest effort to secure the return of the principal. We do not think such a construction can be placed upon the statute. It is not so expressed, nor is there anything to show such a legislative intent. The language is broad and express. The bail, at any time before final judgment against him upon a forfeited recognizancе, may surrender his principal in open court, оr to the sheriff, and, upon the payment of cоsts, shall be discharged. The bail had the right to take оut a bail-piece and arrest the princiрal in any county in the State. Turner v. Wilson, 49 Ind. 581. The State had a right tо re-arrest the principal. We think it can makе no difference how the principal was рroduced in court. If he was produced by the bаil and costs paid before final judgment, the surety was entitled to be discharged. The court committed no error in overruling the demurrer to the answer.
The judgment below is affirmed, with costs.