Crain v. State

• Decision Date: 19 May 1939
• Docket Number: A-9632.
• Citation: 90 P.2d 954,66 Okla.Crim. 228
• Parties: CRAIN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

90 P.2d 954

66 Okla.Crim. 228

CRAIN v. STATE.

No. A-9632.

Court of Criminal Appeals of Oklahoma

May 19, 1939

Syllabus by the Court.

1. When an appeal from a judgment of conviction is perfected, and the crime is a bailable one, pending the appeal, this court will on proper showing, make all necessary orders relating to bail.

2. A certified copy of the bond given on appeal, delivered to the sheriff of the county wherein the conviction was had, by the sureties, whose principal was in the custody of the sheriff on another charge, and confined in the county jail constitutes due process, and authorizes the sheriff to detain the defendant.

3. Under the statute authorizing those furnishing bail for release pending appeal from a judgment of conviction to relieve themselves from further liability by surrendering the principal to the sheriff of the county any time before breach of the obligation, it is immaterial that when the surrender is made such principal is already in the sheriff's custody on another charge, and the sureties are exonerated from liability on the bond. Sec. 2819, Sts.1931; 22 Okla.St.Ann. Sec. 1107.

Claude Crain was convicted of larceny of domestic animals and he appealed. On application by J. H. Mefford and Emma Mefford sureties on his appeal bond to be exonerated and discharged.

Sureties exonerated and discharged.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.

DOYLE Presiding Judge.

The application filed in this court on May 15, 1939, sets forth the following facts: That on December 19, 1938, plaintiff in error, Claude Crain, was convicted in the district court of Ottawa county of the crime of larceny of domestic animals, and was sentenced to serve a term of 10 years in the state penitentiary; that his appeal bond fixed in the sum of $2,000 was made and executed by said principal, sureties, J. H. Mefford and Emma Mefford, applicants herein, and was duly approved by the Court clerk of Ottawa County, March 25, 1939; that from the judgment the appeal was duly perfected, the petition in error with case-made filed April 26, 1939; that the said Claude Crain is in the custody of the sheriff in the county jail of Ottawa county.

That a certified copy of said supersedeas bond, with endorsements thereon as provided by law, was delivered to the sheriff of Ottawa county. On May 9, applicants filed their motion in the district court of said county, requesting the court to recommit said defendant, and to enter an order releasing and discharging J. H. Mefford and Emma Mefford, as sureties on the appeal bond of said Claude Crain.

That upon the hearing of said motion, the court found that said district court was without jurisdiction to entertain said motion, because an order releasing sureties on the appeal bond, after the appeal is perfected, can only be entered by the appellate court.

"Applicants further state that they are desirous at this time of being released as sureties of the defendant Claude Crain on the supersedeas bond heretofore made in said cause. That said defendant is now in the custody of the Sheriff of Ottawa County, Oklahoma, but may be released at any time to the Sheriff of Delaware County, Oklahoma, to answer a charge pending in the District Court of Delaware County. That extradition proceedings were attempted by the State of Missouri since the conviction of said defendant on charges of felony that were unknown to these applicants at the time of execution of said supersedeas bond.

Wherefore, said applicants pray the court, that they be released and exonerated as sureties on the supersedeas bond of Claude Crain in the appeal now pending before this court, and that said court make such order re-committing said defendant Claude Crain and to grant such other and further relief as may be necessary to exonerate and release the sureties J. H. Mefford and Emma Mefford."

Attached to said petition is a certified copy of said supersedeas bond, with endorsements thereon, as provided by law; also the findings and order of said Wm. M. Thomas, District Judge, concluding as follows:

"The Court further finds that a certified copy of the supersedeas bond, with proper indorsement of sureties thereon, as provided by law, has been delivered to the Sheriff of Ottawa County, and that the defendant is in the custody of the Sheriff of Ottawa County and in jail at this time. That proper notice, as provided by law, was given the County Attorney of Ottawa County of said motion, and that the sureties appeared by their attorney, C. Wayne Stevens, of Newkirk, Oklahoma."

When an appeal is perfected, and the crime is a bailable one, pending the appeal, this court will, on proper showing, make all necessary orders relating to bail. Killough v. State, 6 Okl.Cr. 311, 118 P. 620.

Our Code of Criminal Procedure provides that sureties on an appeal bond have the right to terminate at any time the responsibility assumed by them by surrendering their principal into custody of the proper court or officer.

Sec 2819, 22 Okla.Sts.Ann. sec. 1107, reads as follows: "Any party charged with a criminal offense and admitted to bail may be arrested by his bail at any time before they are finally discharged, and at any place within the State; or by a written...