Bearden v. State

• Decision Date: 01 May 1890
• Citation: 7 So. 755,89 Ala. 21
• Parties: BEARDEN ET AL. v. STATE.
• Court: Alabama Supreme Court

7 So. 755

89 Ala. 21

BEARDEN ET AL. v. STATE.

Supreme Court of Alabama

May 1, 1890

Appeal from circuit court, Chilton county; J. R. DOWDELL, Judge.

A defendant in a criminal case made default, and judgment nisi was entered against him and his bail, requiring them to show cause at the next term why it should not be made final. The bail having before that time surrendered, the defendant asked to be discharged. Final judgment was entered against them for $25, the bond having been for $150, from which they appeal.

W A. Collier, for appellant.

W L. Martin, Atty. Gen., for the State.

STONE C.J.

Bail is a delivery of a person to his sureties, upon their giving together with himself, sufficient security for his appearance; he being supposed to continue in their friendly custody instead of going to jail. 2 Amer. & Eng. Enc. Law, 1. So, when bail is given for a defendant's appearance at court, the sureties on the bail-bond become bailees or custodians of the person of their principal, and they, at any time, before default against them is fixed, may surrender their principal in full discharge of their obligation for his appearance at court. This is a common-law right, older than and independent of our statute on the subject. 1 Tidd, Pr 281, 282; 2 Amer. & Eng. Enc. Law, 25; 1 Bish. Crim. Proc. § 250. The doctrine of arrest, bail, and surrender of the principal in exoneration of the sureties originally pertained alike to civil and criminal proceedings. It ceased as to the former when imprisonment for debt was abolished. Section 3685 of the Code 1852 provides that, "at any time before the bail [in criminal cases] are finally discharged, they may surrender the defendant in exoneration of themselves." Section 3686. "For this purpose they may arrest the defendant on a certified copy of the undertaking at any place in this state, or may, by a written authority indorsed on such copy, authorize another person to do so." This is the first time in Alabama legislation when the foregoing provision made its appearance in criminal procedure. Since then it has been retained in every codification of our statutes without material change. In the special Penal Code of 1866, § 699, the language is: "Bail may, at any time before they are finally discharged, exonerate themselves by surrendering the defendant." Code 1867, § 4250; Code 1876, § 4859; Code 1886, § 4429.

We have endeavored to trace the history of this legislation to its source, but have found no mention of it in our criminal jurisprudence earlier than the Code of 1852. We have said the common-law rule of arrest, bail, and surrender of defendant in discharge of his sureties was the same in civil and criminal proceedings. By the "Act making further regulations in judicial proceedings," approved December 24, 1812, (Toulmin, Dig. 33,) it was provided "that the bail shall have liberty, at any time before final judgment obtained against him on scire facias, to surrender to the court from which such process issued, or to the sheriff, returning such process during the sitting of such court, or to the sheriff, in the recess of such court, the principal in discharge of himself." Aiken, Dig. p. 54, § 18; Clay, Dig. p. 75, § 20. These statutory provisions remained substantially unchanged, so far as we have discovered, until, by the...