State v. . Staley

ClakksoN, J. The appearance hond that Felix Staley signed as surety for Clyde Staley was to the effect that the said Clyde Staley should appear at the August Term, 1928, of the Superior Court of Wilkes County to answer an indictment for assault and with a deadly weapon “and not depart the same without leave.” He appeared, was tried under the bill of indictment and found guilty, and ordered by the presiding judge into custody. Before judgment was pronounced, counsel for Clyde Staley stated to the court that he was under good bond and requested that he might go under the bond from day to day until judgment could be pronounced. The court granted the request and Clyde Staley was released from custody under the bond given for his appearance at the August Term, but, during the term and before judgment was pronounced, Clyde Staley fled and departed the court without leave. Defendant Clyde Staley was called out at said term and sci. fa. was issued and served on the surety Felix Staley at said August Term. *388 The surety answered and contends that he is released from the bond, as Clyde Staley, after verdict of guilty was rendered against him, was ordered into custody and placed in jail and released without his knowledge or consent. We cannot hold, under the facts and circumstances of the case, that the bond was released. Felix Staley signed the bond with the clear provision that Clyde Staley should “not depart the same (court), without leave.” Clyde Staley did depart without leave and thus violated the clear language of the bond which Felix Staley signed. In S. v. Hutchins, 185 N. C., 694, a bond similar, with the provision “and shall not depart the court without leave” was given. Speaking to the subject, the Court, at p. 695, said: “In reference to bonds of this purpose and tenor, it has been uniformly held in this jurisdiction that they constitute a continuing obligation, and that neither principal nor surety is relieved until the cause is finally disposed of, or they are discharged by order of the court. S. v. Eure, 172 N. C., 875, and authorities cited. S. v. White, 164 N. C., 410; S. v. Schenck, 138 N. C., 560; S. v. Morgan, 136 N. C., 602; S. v. Jenkins, 121 N. C., 637; S. v. Smith, 66 N. C., 620.” It is a hard measure on the surety, but the bond which he signed in unmistakable language makes him responsible that the principal could not depart the court without leave, which the principal did. The judgment below is Affirmed. BeogdeN, J., dissents.