State v. . Eller

Barnhill, J. Respondent’s contention that the judgment absolute is voidable and unenforceable for that the sci. fa. was not served on the principal cannot be sustained. Bond Co. v. Krider, ante, 361. Its further contention, that the fact that the principal on the bond had been arrested by officials of another county of this State and was tried and sentenced and was actually in custody of State officials at the time the case was called for trial constitutes a valid defense and that the judgment absolute was prematurely pronounced presents a more serious question. The authorities seem to be in substantial accord in holding that if the principal in a bail bond is a fugitive from justice or is imprisoned in another jurisdiction for a second and different offense this is no defense in behalf of the surety and will not defeat a judgment absolute on the bond. Granberry v. Pool, 14 N. C., 155; 3 R. C. L., 53. See also Anno. 26 A. L. R., 412. However, the courts are not agreed as to whether a subsequent arrest and imprisonment, in another county of the *367 same State, of the principal in a criminal bail bond for an offense other than that for which the bond was given and is being actually detained at the time he is obligated to appear will exonerate the surety on the bond. Anno. 26 A. L. E., 417. Upon a careful consideration of this question we are convinced that the weight of authority both on principle and reasoning supports appellant’s contention that when one is bound, as bail for another for his appearance in a particular court at a particular time and the State, before the time stipulated for the appearance, arrests the principal and detains him in another place, thus preventing him from appearing at the time and place stipulated, the bail will be exonerated during such detention. “The State does an act perfectly lawful when she so arrests him for a second offense. If she should keep him in her own custody, of course the bail in the first case would be discharged; because she could produce him, but they could not. . . . And whichever case is tried first, if it results in imprisonment, the sureties for the other are discharged.” 3 E. C. L., 62. By recognizance of bail in a criminal action the principal is, in the theory of the law, committed to the custody of the surety. So long as the principal remains at large the surety may relieve him of the undertaking at any time before forfeiture of the recognizance by surrendering the accused into the custody of the sheriff of the county in which he is prosecuted. C. S., 4594. But when the State steps in and rearrests the principal and thus assumes custody of his person it deprives the surety of this right and takes from him any control over the principal. At the time the case is called for trial the State, having the principal in its custody, can either -continue the case until the former sentence expires or it can apply to the court for a writ of habeas corpus ad delib-erandum et recipiendum. It and not the surety then has the power to produce the body of the principal. We do not consider S. v. Holt, 145 N. C., 450, in substantial conflict with the position here assumed. There the principal was only temporarily confined by town authorities for drunkenness at the time his case was called. He was released and could have been produced by the bondsman before the expiration of that term. That was not done. Instead, the principal became a fugitive from justice and the bondsman was negligent in failing to produce him after bis release and in permitting his escape. Here the surety has been diligent and has arranged for the production of the principal so soon as his sentence expires. However, in so far as that case does conflict herewith it is overruled. It may be well to note that C. S., 791, which contains the provision that the bail will be exonerated by the imprisonment of the defendant in the State’s Prison, relates only to bonds executed in arrest and bail *368 proceedings. Adrian v. Scanlin, 77 N. C., 317; Sedberry v. Carver, 77 N. C., 319. Even so, we adhere to the view that when the State imprisons a principal in a criminal appearance bond after the execution of the bond and has him in custody at the time he is obligated to appear for trial the bond is exonerated during the term of detention. S. v. Welborn, 205 N. C., 601. The State may not detain the principal in the State’s Prison and at the same time demand his presence in court on penalty of forfeiture of his bond. The judgment absolute should be stricken from the record and the hearing on the sci. fa. should be continued until the surety has had opportunity to produce the defendant after his release from prison. Error and remanded.