Form, Qualifications, and Return of Bail. dent of this state, and a householder and freeholder therein, and that each must be worth, exclusive of property exempt from execution, the amount expressed in the undertaking; but the court, magistrate, or officer, in taking bail, may allow more than two persons to justify severally as bail in amounts less than that expressed in the undertaking, provided the whole be equivalent to two sufficient bail. 6344. (4364) (4422) (4854) (4246) (695) How bail given by lunatics, married women, and infants.—It is not necessary that lunatics, married women, or infants should themselves execute or acknowledge the undertaking of bail; but any other person may enter into an undertaking for their appear ance. 6345. (4365) (4423) (4856) Certain officers forbidden to become bail in certain cases.-It shall not be lawful for any judicial or ministerial officer of this state to go bail for any prisoner or other person tried before him, or put in his charge under any criminal accusation, or to sign any bond or other obligation for the release or appearance of such person, either before himself or any other officer or officers. (Feb. 7, 1877, p. 137, § 1.) King's case, 81 Ala. 92 (8 So. 159). 6346. (4366) (4424) (4857) (4248) (697) Bail required to qualify when doubtful.-When there is a reasonable doubt as to the sufficiency of the bail, they may be required by the court, magistrate, or officer, to answer fully on oath as to their qualifications. 6347. (4367) (4425) (4861) (4252) (701) Undertakings returned to court.-All undertakings of bail must be returned by the magistrate or officer by whom taken to the clerk of the court before which the defendant is bound to appear, within the same time, and in the same manner as is provided by section 6291 (5258) for the return of writs of arrest. 6348. (4368) (4426) (4862) (4253) (702) When new undertaking may be required by court.-The court, before which any defendant is bound to appear, may require him to enter into a new undertaking, when it appears to the court that the original undertaking was insufficient when entered into, or has since become insufficient from any cause whatever. When principal required to give new bail and ordered into custody, sureties on first bail bond discharged.-Posey's case, 79 Ala. 45. Effect of Undertaking, and Discharge of Bail. SECTION. ARTICLE 5. EFFECT OF UNDERTAKING, AND DISCHARGE OF BAIL. 6349-6353. 6349. Effect of undertaking; to what extent binds parties thereto. 6350. Bail not discharged by irregularities or by want of qualification. 6351. Bail discharged by surrender of principal; may arrest, or SECTION. authorize arrest of princi pal. 6352. Arrest by bail after conditional judgment. 6353. Surrender of defendant to sheriff necessary to exoner ate bail; when new bail allowed. 6349. (4369) (4427) (4852) (4244) (693) Effect of undertaking; to what extent binds parties thereto.-The undertaking of bail binds the parties thereto, jointly and severally, for the appearance of the defendant on the first day of the court, from day to day of such term, and from day to day of each term thereafter, until he is discharged by law; and, if the trial is removed to another county, for the appearance of the defendant from day to day of each term of the court to which it is removed until discharged by law. For origin and history of this chapter, see Toulmin's Digest, pp. 219–223. Sureties can only be discharged by appearance of principal according to con dition of bail, or by some intervening act of God, or of the law of the state or of the obligee which renders it impossible.-Ringeman v. State, 136 Ala. 131 (34 So. 351). Death of principal discharges bail, but illness does not.Ringeman v. State, 136 Ala. 131 (34 So. 351). When bail not discharged.Ingram's case, 27 Ala. 17. Failure to indict at first term and failure to con tinue cause, or take forfeiture, is a discontinuance, and discharge of obligors on bail bond.-Rogers's case, 79 Ala. 59; but if cause is continued, or forfeiture taken at first term, failure to indict does not discharge sureties.-Kyle's case, 99 Ala. 256 (13 So. 538). Principal may be bound on recognizance when sureties are not.-Calhoun's case, 99 Ala. 279 (13 So. 425). Forfeiture may be taken against one or more of the sureties without the principal.-Kilgrow's case, 76 Ala. 101. The bond is forfeited if principal escapes during trial.Hawk's case, 84 Ala. 466 (4 So. 690); Cook's case, 91 Ala. 53 (8 So. 686); Merrill's case, 46 Ala. 82. Escape of the prisoner before trial completed does not discharge his sureties, though he was present at the beginning of the trial. Cohely v. State, 129 Ala. 660 (30 So. 905); Hawk v. State, 84 Ala. 466 (4 So. 690); Cook v. State, 91 Ala. 53 (8 So. 686). A discontinuance results in all cases from the passing of the term without any action whatever being taken or a general order of continuance or something of the kind.-Ex parte Stearnes, 104 Ala. 93 (16 So. 122). A discontinuance of course discharges sureties. Ex parte Stearnes, 104 Ala. 93 (16 So. 122); see 110 Ala. 85 (20 So. 392); 135 Ala. 71 (33 So. 660). Surrendering principal discharges bail.— Bearden v. State, 89 Ala. 21 (7 So. 755). Sufficient description of offense in undertaking; proper proceedings on forfeiture.-Keipp v. State, 49 Ala. 337. Withdrawal of appearance, presumption in regard to judgment by default.— Harrison v. Holley, 46 Ala. 84. Conviction and sentence in another case insufficient as to release of sureties.-State v. Crosby, 114 Ala. 11 (22 So. 110). 6350. (4370) (4428) (4858) (4249) (698) Bail not discharged by irregularities or by want of qualification.-No bail are discharged by reason of the want of any of the qualifica Effect of Undertaking, and Discharge of Bail. tions required in this chapter, or by reason of there not being the requisite number of bail, or by reason of any other agreement than is expressed in the undertaking, or by reason of the infancy, coverture, lunacy, or any other incapacity of any of the other parties thereto, or because the defendant has not joined in the same. Surety cannot set up as defense that bond was only delivered in escrow, or that there was only one surety, or that he was not to be bound until another bond with other sureties was made.-Matthews's case, 92 Ala. 89 (9 So. 740). Approving officer should not sign bail bond.-King's case, 81 Ala. 92 (8 So. 159). 6351. (4371) (4429) (4859) (4250) (699) Bail discharged by surrender of principal; may arrest, or authorize arrest, of principal.—Bail may, at any time before a conditional judgment is rendered against them, exonerate themselves by surrendering the defendant; and for that purpose, they may arrest the defendant on a certified copy of the undertaking at any place in the state, or may authorize another person to arrest him by an indorsement in writing on such copy. (Feb. 16, 1891, p. 719.) When a party is convicted and sentenced, he is no longer in the custody of the bail, but in the custody of the proper officer of the law and the bail are thereby discharged.-Ex parte Williams, 114 Ala. 29 (22 So. 446). Conviction and sentence in another case insufficient as to release of sureties.-State v. Crosby, 114 Ala. 11 (22 So. 110). This section construed.-Kilgrow's case, 76 Ala. 101. Legal effect of undertaking, when judgment of conviction suspended on appeal, and bail given to appear at next term, etc.—Williams's case, 55 Ala. 71. Sheriff having accepted and approved one bond, he cannot release sureties thereon by accepting another bond.Matthews's case, 92 Ala. 89 (9 So. 740). Prior to amendatory act, the surrender of the defendant at any time before final judgment exonerated bail.Bearden's case, 89 Ala. 21 (7 So. 755). 6352. (4372) Arrest by bail after conditional judgment.After the rendition of conditional judgment against them, bail may arrest the defendant as provided in the preceding section; but such arrest and delivery of the defendant to the sheriff shall not exonerate the bail unless, in the judgment of the court, a good and sufficient excuse is given for the failure of the defendant to appear at the time the conditional judgment was rendered. 6353. (4373) (4430) (4860) (4251) (700) Surrender of defendant to sheriff necessary to exonerate bail; when new bail allowed. To exonerate the bail, the surrender of the defendant must be made to the sheriff of the county in which the court is held to which the defendant is bound to appear, or to which the trial has been removed; and if the charge is for a misdemeanor, the sheriff may discharge him on his giving new bail; otherwise, must keep him in jail until discharged by law. Forfeiture; Proceedings Thereon. ARTICLE 6. FORFEITURE; PROCEEDINGS THEREON. 6354-6360. SECTION. 6355. Proceedings on forfeiture of 6357. Notice or scire facias executed; return. SECTION. 6358. Alias notice; two returns "not found" equivalent to personal service. 6359. Conditional judgment set aside, reduced, or made absolute. 6360. Excuses for default heard at any time, and allowed without cost. 6354. (4374) (4431) (4853) (4245) (694) Undertaking of bail; essence of, and when forfeited.—The essence of all undertakings of bail, whether upon a warrant, writ of arrest, suspension of judgment, writ of error, or in any other case, is the appearance of the defendant at court; and the undertaking is forfeited by the failure of the defendant to appear, although the offense, judgment, or other matter is incorrectly described in such undertaking, the particular case or matter to which the undertaking is applicable being made to appear to the court. Appearance bond in bastardy proceedings.-Hanna v. State, 60 Ala. 100. There must be some designation or description, although its correctness is of slight importance; and though undertaking shows the indictment is not for any punishable offense, it is no defense to forfeiture and proceedings.—Eldred's case, 31 Ala. 393; Vasser's case, 32 Ala. 586; Toleson's case, 39 Ala. 103; Keipp's case, 49 Ala. 337. Technical accuracy in describing the offense.was never required; a substantial description sufficient.-Hall's case, 9 Ala. 827; Weaver's case, 18 Ala. 293. But if no offense, case, or prosecution is mentioned, the undertaking is deficient, and the statute has no application.-Whitley's case, 40 Ala. 728. And its deficiencies cannot be supplied by parol evidence.-Ib.; Dover's case, 45 Ala. 244. When parol proof may aid.—Vasser's case, 32 Ala. 586. Nor does this statute apply where there is a description of a different offense; for instance, a bond designating or describing offense as perjury cannot hold under charge of burglary.-Gray's case, 43 Ala. 41. Great particularity not required, and technical objections not available, if the particular case is made to appear to the court.-Holcombe's case, 99 Ala. 185 (12 So. 794). Defendant being bound over for both burglary and larceny, his bail equally bound if indictment is found for either.-Ib. Where accused is committed and transferred to another county, the sheriff of the county where he is so transferred may take bail.-Ib. Bail not discharged on failure to indict at first term, if cause continued or forfeiture taken.-Kyle's case, 99 Ala. 256 (13 So. 538). But failure to either continue case or take forfeiture at first term is a discharge.-Rogers's case, 79 Ala. 59. Bail not discharged if principal escapes during trial.-Cook's case, 91 Ala. 53 (8 So. 686); Hawk's case, 84 Ala. 466 (4 So. 690). On discharge of bail, cost adjudged against county. Parker's case, 83 Ala. 269 (3 So. 552). This proceeding is a civil action and county may be liable for costs.-State v. Earnest, 123 Ala. 631 (26 So. 948). 6355. (4375) (4432) (4863) (4254) (203) Proceedings on forfeiture of undertaking; judgment nisi.-Whenever an Forfeiture; Proceedings Thereon. undertaking of bail is forfeited by the failure of the defendant to appear as required, a conditional judgment must be rendered by the court in favor of the state, for the use of the proper county, against the parties to the undertaking for the sum therein expressed; which judgment may be substantially as follows: The State] VS. A. B. Indictment for assault and battery (or other offense, as the case may be). It appearing to the court that the said A. B., together with C. D. and E. F., agreed to pay the State of Alabama dollars (the sum specified in the undertaking), unless the said A. B. appeared at this term of the court to answer in this case; and the said A. B. having failed to appear, it is therefore ordered that the State of Alabama, for the use of county, recover of the said A. B., C. D., and E. F., on said undertaking, the sum of dollars (the sum specified in the undertaking), unless they appear at the next term of this court, and show cause why this judgment should not be made absolute. (Aikin's Digest, p. 121, § 41; Clay's Digest, p. 481; § 29.) Judgment nisi should state offense for which accused was indicted; sci. fa. should recite judgment substantially.-Gresham v. State, 48 Ala. 625. Defendant may be required to answer for manslaughter under an indictment for murder.-Gresham v. State, 48 Ala. 625. Costs may be awarded against county.-State v. Parker, 83 Ala. 269 (3 So. 552); State v. Earnest, 123 Ala. 631 (26 So. 948). To authorize forfeiture against one or more of the sureties without the principal.-Kilgrow v. State, 76 Ala. 101. To authorize judgment final, sci. fa. must be returned executed or two returns of "not found."-Hunt v. State, 63 Ala. 196. Form of sci. fa.; how sci. fa. discontinued.-Hunt v. State, 63 Ala. 196. Judgment final on bail bond cannot be compromised by solicitor.Dunkin v. Hodge, 46 Ala. 523. Judgment nisi in the form prescribed by the Code is sufficient.-Cantaline's case, 33 Ala. 439. It should state the offense, or designate it (as in the form), to sustain judgment final.-Gresham's case, 48 Ala. 625; Faulk's case, 9 Ala. 919; Lindsay's case, 15 Ala. 44; Hall's case, Ib. 431. And must not recite charge variant from that in recognizance.— Howie's case, 1 Ala. 113; Farr's case, 6 Ala. 795; Faulk's case, 9 Ala. 919; Badger's case, 5 Ala. 21; Gray's case, 43 Ala. 41. But need not set out the recognizance. Howie's case, 1 Ala. 113. Nor literally describe it; for, if stated according to its legal effect, neither plea of nul tiel record nor demurrer will be sustained.-Williams's case, 55 Ala. 71. Judgment nisi need not show that sureties were called to produce the principal.-Hinson's case, 4 Ala. 671; Richardson's case, 31 Ala. 347. Proceedings civil, not criminal.-Parker's case, 83 Ala. 269 (3 So. 552); Hatch's case, 40 Ala. 718. If on final hearing judgment nisi is set aside, judgment is properly rendered against the county for costs.-Parker's case, 83 Ala. 269 (3 So. 552); Dover's case, 45 Ala. 255. What sufficient description of case in judgment nisi.-Holcombe's case, 99 Ala. 185 (12 So. 794). 6356. (4376) (4433) (4864) (4255) (704) Same; scire facias or notice of judgment nisi.—A notice of the rendition of such 22-AC-VOL. III |