Cooper v. Rivers

Whiteield, O. J., delivered the opinion of the court. In section 1464, Code of 1906, it is provided as follows: “It' is the duty of the sheriff taking a bail bond to return the same to the clerk of the circuit court of the county in which the offense is alleged to- have been committed on or before the first day of the next term thereof; and if any sheriff neglect to take a bail bond, or if the same, from any cause, be insufficient at the time he took and approved the same, on exceptions taken and filed before the close of the next term, after the same should have been returned, and -upon reasonable notice thereof to said sheriff, he shall be deemed and stand as special bail, and judgment shall be rendered against him as such.” On the facts of this case we think the sheriff became special bail. — 428 — The sheriff admits he is special bail himself, and pays the money into court, and left the contest between the plaintiff and the state, represented by the district, attorney. On this ground alone we rest the judgment of affirmance. There is, however, another ground, to wit, that the plaintiff is in pari delicto with him in having joined in the violation of the law in taking the deposit of $250, instead of taking a proper bond or recognizable. In Davis v. People, 50 Ill. 199, we have a case on all fours with the case at bar. It was illegal in the state of Illinois to take the cash deposit instead of a bond or recognizance, and the corut held that the act of the sheriff was illegal. But it went on to hold that the plaintiff was in pari delicto with the sheriff, and so could not recover the money. That court said: ' “Then it follows that the act is unauthorized and illegal, .and, if so, the sheriff has wrongfully become possessed of this money, and plaintiff in error is entitled to recover it back, unless he is in pari delicto. That it is a flagrant violation of the., duty of a sheriff or jailer to discharge a prisoner committed to his custody under 'proper authority, unless it be by legal requirement, there can be no question; and, should a sheriff receive a bribe for the purpose, he would no doubt render himself liable to indictment and punishment under the Criminal Code, or where the sheriff willfully, or from ignorance of his duty, unlawfully discharges a prisoner indicted for crime. Section 101 of the Criminal Code declares that if any sheriff, coroner, jailer, keeper of a prison, constable, or other officer or person whomsoever having any prisoner in his legal custody before conviction, shall voluntarily permit or suffer such prisoner to escape or go at large, every such officer or person so offending, shall, on conviction, be fined in any sum not exceeding $1,000, and imprisoned in the county jail not exceeding six months. It is apparent that the receipt of this money for the purposes shown by the evidence was illegal, and that it did not warrant the discharge of the prisoner; and, if that was not — 429 — authorized, it was in violation of section 101 of the Criminal Code, and, if so, then plaintiff in error was pa/rticeps criminisThere is no rule of law more firmly established than that a party who gives or pays money to induce another to commit a crime or misdemeanor, being a party to it, cannot recover it back. -Although this money was not paid as a bribe, it was left as an indemnity to the sheriff to procure the release of the prisoner, and plaintiff in error thereby contributed to the breach of the law, and, from the evidence in the case, to a violation of the Criminal Code. It then follows that, as plaintiff in error contributed to the wrongful discharge of the prisoner and has thus assisted in obstructing justice, he has no right to recover this money back from defendant in error.” The case of Smith v. State, 86 Miss. 315, 38 South. 319, rests upon a different state of facts, and upon a different principle of law. There is no merit or justice in the contention of the appellant. Therefore the judgment is affirmed.