Smith v. Kitchens

McCay, Judge. We think the court below was right in holding these securities discharged. It would be a very bad public policy to treat the bond given by the defendant before a magistrate, as [160] inhibiting the judge of the superior court, either after or before indictment, from ordering the re-arrest of the defendant. These bonds are often taken without due consideration, and ought to be subject to the reconsideration of the matter by the judge. The case quoted from Texas seems at first sight very much in point, but it will be noticed that the new process was issued by the clerk. Here, after indictment found, the judge issues a bench warrant over his own signature and seal, ordering an arrest. That arrest was made, the_ party was in the custody of the sheriff, and escaped. It would, as it seems to us, be an outrage to charge the original securities with this escape. He was in the lawful custody of the sheriff. The securities could not control him. He was held by the sheriff for this very crime. "We are not prepared to say this second arrest was' illegal. We must do that to hold these securities liable, since if it was legal the state had, by its own lawful act taken the defendant out of the custody of the securities, to hold him for the very same offense. The course pursued in this case is the common practice in the state, and has been for many years. Especially "after indictment found, the judge of the court where the indictment is, orders the re-arrest of one under bail, at his discretion. As we have said, it is a very proper thing often for the judge to do, and if such a power did not exist, it would be a great defect in our criminal law. Judgment affirmed.