100 Tenn. 303 | Tenn. | 1898
Defendant was indicted in the Criminal Court of Davidson County for the larceny of
The application is made to withdraw the fund by one Fred Morrill, who claims to have made the deposit in the hands of the Clerk below as the agent of Mrs. Lizzie A. Morrill, of Boston, Massachusetts, stated to be the mother of defendant. It is alleged that the money belongs to Mrs. Morrill, and not to the defendant, and that it was not loaned to the defendant, but was deposited by the mother through her agent, the said Fred Morrill. These allegations are supported by some affidavits, and it is stated that said Fred Morrill has power of attorney from the mother to draw the fund.
The deposit of money instead of bail bond is
Under this section of the statute, it is clearly the duty of the Court to direct the costs to be paid out of the sum deposited, and if there is a fine, that must also be paid, and, until this is done, the fund cannot be withdrawn. It follows that the costs in this cause, amounting, as shown by the Clerk, to $109.40, must be retained out of the fund, and only the balance paid over.
The next question presented, is, to whom shall the balance be' paid ? In New York, § 589 of the Code of Criminal ITocedure, provides ‘ ‘ that when money has been deposited (in lieu of bail bond), if it remain on deposit and unforfeited at the time of a judgment for the payment of a fine, the County Treasurer must, under direction of the Court, apply the money in satisfaction thereof, and, after satisfying the fine, must refund the surplus, if any, to the defendant ’ ’ — a statute very similar to that of Tennessee. In construing this statute, it was held,
The Clerk will, therefore, retain said sum of $109.40 and the costs of this application, and the balance he will pay over to the defendant, or to such person as he may direct by proper power of attorney, to be entered of record in this Court.