State v. Schenck

• Decision Date: 28 February 1904
• Citation: 138 N.C. 560,49 S.E. 917
• Parties: STATE v. SCHENCK et al.
• Court: North Carolina Supreme Court

49 S.E. 917

138 N.C. 560

STATE

v.SCHENCK et al.

Supreme Court of North Carolina.

Feb. 28, 1904.

BAIL BOND—FORFEITURE—LIABILITY OF SURETIES—STATUTE.

Defendant in a criminal prosecution was tried before a justice of the peace, and required to give bail for his appearance at the next term of court to answer the state on the charges against him, and "not to depart the same without leave first had and obtained."He appeared, was tried and convicted, and the court adjudged that he pay a fine and costs.He thereupon excepted and appealed, and was ordered to give an undertaking for costs of the appeal, and an undertaking to stay the execution on the judgment, and one for his appearance at the next term of court, but failed to give any of the undertakings, or to pay the fine and costs, and, having been called before the expiration of the term of court and failing to answer a judgment nisi was entered against him and his sure ties for the penalty of the bail bond.A scire facias having been issued on the judgment and served, the judgment was made absolute.Held, on a motion by the sureties to set aside the judgment, that the defendant's appearance, his conviction, and sentence did not exonerate the sureties from liability on the bond, in view of Code, § 1230, providing that the sureties can surrender their principal to the court, or to any lawful officer appointed to receive him, at any time before execution against them.

Appeal from Superior Court, Craven County; Councill, Judge.

William Schenck was convicted of unlawfully selling liquor, and, from an order overruling a motion to set aside a judgment forfeiting his bail bond, his sureties appeal.

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 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 failed, 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.

R. A. Nunn, for appellants.

The Attorney General, for the State.

WALKER, J.(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 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 timeto arrest and surrender him again to the custody of the law, in discharge of their obligation.They were sometimes said to be his jailers, and to have him always upon the string, which they may pull when they please, in order to surrender him in their own discharge.Cain v. State, 55 Ala. 170; 1 Chitty's Cr. Law, 104.If they would fully discharge their obligation as his bail, they should as effectually secure their principal's appearance and put him as much under the power of the court, as if he were in the custody of the proper officer, and they do not answer the end of the law unless this is done.The principle thus stated is of ancient origin, and has been recognized as controlling in determining the liability of bail.1 Bacon, Abr."Bail, " L;State v. Stout, 11 N. J. Law, 124.The extent of their duty and obligation, therefore, is to see to it that the principal, at all times during the term of the court to which he is bound to appear, is present to answer the call of the court and to do what the law may require of him.If they fail in this respect, they have not kept him under the power of the court as if he had been in the custody of its proper officer.It must not be inferred that the surety is thereby required to do something not stipulated in his bond, for the obligation thus imposed is nothing more than what the law reasonably considers to be within the condition of his undertaking.It is said by the highest authority that a recognizance (or bail bond), in general, binds to three things: (1) To appear and answer either to a specified charge, or to such matters as may be objected; (2) to stand to and abide the judgment of the court; and (3) not to depart without leave of the court; and that each of these particulars are distinct and independent.This was said, too, with reference to a bail bond worded precisely like the one in this case.It was contended by counsel in that case, which we will presently cite, that the stipulation not to depart the court without leave was an...