Rupert v. People

Mr. Justice Goddard delivered the opinion of the court. It appears upon the face of the complaint that the recognizance upon which the right of action is predicated was approved by the sheriff in a case where the prisoner was committed to the county jail in default of bail. Under these circumstances, the sheriff has no authority to approve a bond and release a prisoner from custody. In such case, the power to let to bail is expressly conferred upon a judge or two justices of the peace, by sec. 981, Gen. Stats., 1888, (Mills’ An. Stats., sec. 1487,) which enacts : “ Where anjr person shall be committed to jail on a criminal charge for want of good and sufficient bail, except for murder or other offense punishable with death, or for not entering into a recognizance to appear and testify, any judge or any two justices of the peace may take such bail or recognizance in vacancy, and may discharge such prisoner from his or her imprisonment.” The recognizance, therefore, having been taken and approved by an officer without authority, is void, both as a statutory bond and as a common law obligation. People v. Mellor, 2 Colo. 705; Haney v. People, 12 Colo. 345; State v. Winninger, 81 Ind. 51; State v. Russell, 24 Tex. 505; State v. Kruise, 32 N. J. Law, 313; State v. Young, 56 Me. 219; Dickenson v. State, 20 Neb. 72; Harris v. Simpson, 14 Am. Dec. 101 (4 Littell, 165); Powell v. State, 15 Ohio, 579; Williams v. Shelby, 2 Ore. 144. As was said in the case of Haney v. People, supra: “ Without discussion, and without analysis of the authorities, we shall assume that if, in a case like the one at bar, bail be taken by a court having no jurisdiction, or by an officer destitute of legal authority, the instrument, whether denominated a ‘ recognizance ’ or ‘ bond,’ is void as to both principal and surety, and that such fact, when shown by the surety, constitutes a good defense to an action against him for the penalty.” The only cases that we have been able to find, that hold a [428] recognizance so approved good as a common law obligation even, are State v. Cannon, 34 Ia. 325, and Dennard v. State, 2 Ga. 137. Judge Freeman, in his note to the case of Harris v. Simpson, supra, in speaking of these cases, says: “ The soundness of this doctrine is very questionable. Since the magistrate had no jurisdiction to admit to bail in such a case, the sheriff had no right to release his prisoner upon a bond so taken, and if he did so it was an escape; and since there is no distinction between voluntary and negligent escape in criminal matters, it was the sheriff’s duty immediately to retake the accused. Surely a breach of duty on the part of the sheriff could not furnish a valid consideration for a bail bond. It would certainly be contrary to the policy of the law to enforce an obligation founded upon such a consideration.” • And as was said in Dickenson v. State, supra: “ To hold that an unauthorized person may accept a recognizance running to the state, which will bind the person entering into it, is to hold that one private unauthorized person may make another the debtor of the state, a proposition illogical in theory and dangerous in practice.” It is clear, upon reason and authority, that the recognizance upon which this action is brought was void, and is not enforceable against the plaintiffs in error; and, its invalidity appearing upon the face of the complaint, the court below erred in overruling .the demurrer and entering. the judgment complained of. This conclusion being decisive of the case, we need not notice the further objection to the right of defendants in error to bring the action. For the foregoing reasons the judgment is reversed. Reversed.