Antonez v. State

CHILTON, C. J. — At the November, term, 1853," of .the Circuit Court of Baldwin county, one John Paine was indicted, under the Code,.for killing one William Cameron and one John-, whose surname was to the grand jurors unknown-. The prisoner being in .custody, and it appearing to the.-satisfaction of the court that the jail of .Baldwin county, was insufficient for his safe-keeping, and that the jail.of Mobile county was the nearest sufficient jail, it was ordered by the court that-the prisoner be delivered by the shcriff-of Baldwin to the sheriff of Mobile county for safe-keeping in the jail of that county until the next term of the Baldwin Circuit Court. The entry further proceeds as follows ; “And .it appearing to the court that the. offence with which the prisoner stands charged, namely, murder in the seco.nd degree, is bailable, it is ordered that, upon the prisoner giving good and sufficient [84] bail, according to law, for his appearance at the next term of this court, in the sum of one thousand dollars, that then said prisoner be discharged from custody until the next term of this court.” It further appears that on the 10th day of November, 1853, James W. Lang, the sheriff of Mobile county, to whom the prisoner had been delivered, received a bail bond from said Paine, the prisoner, signed by the appellant, in the penal sum of $1,000, conditioned for the prisoner’s appearance at the next term of the Baldwin Circuit Court, to answer to a charge of murder in the second' degree. Paine failed to appear at the next term, — a judgment nisi was rendered, on which a sci. fa. issued, and judgment final was rendered. Upon the return of the sci. fa., the appellant, by his counsel, appeared, and made divers motions, viz., to dismiss the sci. fa., to arrest the judgment nisi, and to quash the bond. These motions were severally overruled by the court, and its rulings are here assigned for error. The question as to the liability of the appellant turns upon the legal sufficiency of the bond, and this depends upon the power of the sheriff to take it. Before the Code, the sheriff had no power to admit a party to bail who was charged with a felony.—Butler v. Foster, 14 Ala. 323; Governor v. Jackson, 15 ib. 703. Has the Code altered the law in this respect? We think not. If the offence is a misdemeanor, the sheriff, or his deputy, must discharge the defendant upon his giving bail. Code, § 3546. Section 3408, requiring the committing magistrate to endorse on- the warrant of commitment the amount of bail required, does not apply to commitments after indictment found, but to commitments upon preliminary proceedings had for the arrest of offenders. There is no provision which authorizes the Circuit Court to delegate to the sheriff the power to admit to bail, except upon the trial of a habeas corpus (Code, §§ 3136-1-8); and without such statutory provision, the power does not exist.—Butler v. Foster, 14 Ala. 323. Indeed, the order in this case is not that the sheriff may admit to bail, but the prisoner is to be kept until he give bail “ according to law.” The effect of the order is merely to determine that the offence is bailable, and.to fix the sum. Whether, upon habeas corpus to be admitted to bail, the judge trying the [85] same wotild be bound by such order, is a question we need not now discuss. It is clear that, so far as it may be construed as a delegation of authority to the sheriff to take bail, to that extent it is null and yoid. It follows, as the sheriff had. no power to take the bond, it is no more than so much blank paper, and the judgment rendered upon it is.erroneous. It is therefore set aside, and this court, proceéding to render the judgment which the court below should have rendered, orders that said bond be quashed. Judgment accordingly.