49 S.E. 917 | N.C. | 1905
The defendant Schenck was tried before a justice of the peace for unlawfully selling liquor, a misdemeanor by statute. He was required to give bail for his appearance at the next term of the court held in October, 1903, and the appellants, Williams and Howard, became sureties on his bond, which was conditioned for Schenck's appearance at the said term of court "to answer the State on a charge of selling liquor on Sunday, and selling liquor without license, and not to depart the same without leave first had and obtained." Schenck appeared, was tried and convicted. The court adjudged that he pay a fine of $100 and the costs. He thereupon excepted and appealed and was (561) required to give an undertaking in the sum of $35 for the costs of appeal, an undertaking in the sum of $150 to stay the execution of the judgment, and one in the sum of $100 for his appearance at the next term of the court. He failed to give any of these undertakings or to pay the fine and costs, and having been called and failing to appear, a judgment nisi was entered against him and his sureties for $100, the penalty of his bond. A scire facias issued on this judgment and was duly served, and at April Term, 1904, the judgment was made absolute. The appellants moved to set aside the judgment; the motion was overruled, and they appealed. *404
After stating the case: The ground upon which appellants seek to vacate the judgment is that when Schenck appeared and was convicted and sentenced, the condition of the bond was fully performed and the appellants, his sureties, were exonerated, as by reason of the conviction, they lost control of him and, thereafter, he was in the custody of the law. We cannot think this is the true construction of the bond, and it is certainly contrary to the uniform practice of the courts in this State in such cases. At common law, when bail was given, and the principal relieved from the custody of the law, he was regarded, not as freed entirely, but as transferred to the friendly custody of his bail. They had a dominion over him, and it was their right, at any time, to arrest and deliver him again to the custody of the law, in discharge of their obligation. They were sometimes said to be his jailers and to have Mm always upon the string, which they may pull when they please, in order to surrender him in their own (562) discharge. Cain v. State,
But there is another sufficient reason why the appellants should be held bound by the recognizance or bail bond and to be now liable for the penalty thereof. All the proceedings of the court are in(565) fieri until the expiration of the term, and during the term the record remains completely under the control of the court. It may strike out its judgment and enter a different one. In other words, the court has the whole term during which to consider its action and modify or reverse it. The principle is supported by abundant authority. Penny v.Smith,
We conclude that the recognizance binds the sureties for the continued appearance of their principal, from day to day, during the term and at all stages of the proceeding, until he is finally discharged by the court, either for the term or without day. He must answer its call at *407 all times and submit to its judgment. In no other way can the criminal law of the State be well administered.
No error.
Cited: S. v. White,
(566)