State v. Edwards
Citation | 23 Tenn. 226 |
Parties | THE STATE v. EDWARDS. |
Decision Date | 31 July 1843 |
Court | Supreme Court of Tennessee |
OPINION TEXT STARTS HERE
Attorney General, for the State.
Trewhit, for defendant.
This is a scire facias against the defendant as surety upon a forfeited recognizance. The defendant pleaded, first, that he had surrendered the principal to the sheriff. To this plea there is a general replication and issue. The second plea alleges that the principal for whose appearance the defendant was surety was sick during the whole term of the court at which he was bound to appear. To this plea there is a general replication, to which the defendant demurred. The third plea alleges that the principal for whose appearance the defendant was surety has been tried, convicted, and punished for the offence with which he was charged. To this plea the State demurred.
The court gave judgment for the defendant on his demurrer to the plaintiff's replication to the second plea, from which the State appealed to this court. The demurrer to the replication to the second plea was well taken, because there was no proper conclusion. The substance of the replication amounts only to a denial of the fact stated in the plea, that the defendant in the indictment was sick during the whole term of the court at which he was bound to appear, and should, therefore, have concluded to the country. But the plea itself is bad. The fact that a defendant is sick constitutes no reason for his non-appearance in obedience to his recognizance that will excuse the bail from a surrender of him at the subsequent term.
This, however, leads us to examine the scire facias; for the demurrer goes back to the first fault in pleading. And we think it is bad for several reasons.
1st. By the act of 1809, ch. 6, sec. 2, the sheriff is authorized to take bail in cases where the principal may be surrendered by his sureties. By the act of 1831, ch. 4, sec. 1, the sheriff is authorized to take bail in all criminal cases where the accused has been committed to jail for want of surety. C. & N., 119, 121. These are the only statutes which authorize the sheriff to take bail in criminal cases. His authority is not general, but special. He can only take bail in the given cases mentioned in these statutes--where the party has been surrendered by his bail and where he has been committed for want of surety. He must, therefore, recite in the recognizance the state of facts upon the existence of which his authority to take the bail is founded, otherwise the court can not see that the...
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