Opinion
No. 40615.
November 4, 1957.
1. Bail — scire facias proceeding — question as to whether surety actually signed bail bond — for trier of facts.
In scire facias proceeding against alleged surety on accused's bail bond, conflicting evidence raised question for trier of facts as to whether alleged surety actually signed bail bond.
2. Bail — incarceration of principal — same jurisdiction — same offense — as operating as a discharge of surety.
Generally, where one accused of crime, after having given a recognizance or bail bond and before default or forfeiture, is rearrested and imprisoned in the same offense in pursuance of proper authority, or upon his appearance, is ordered and taken into custody of the sheriff, such arrest or taking into custody operates as a discharge of the sureties.
3. Bail — committment to mental institution for sanity examination at defendant's request — as not operating as discharge of surety.
Where indictee and principal obligor on bail bond filed motion for continuance and suggestion of insanity, and Trial Court ordered indictee committed to State Hospital for sanity examination, the order concluding: "It is further ordered that a certified copy of this order be the sheriff's warrant and authority for committment and for said institution's acceptance and examination, treatment, and determination of said defendant.", and indictee was found to be sane and was released but failed to appear at next term of court as was required by said bond, such order of committment did not relieve surety on bail bond from liability on any theory of rearrest of indictee in same jurisdiction for same crime or any other crime.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Jefferson Davis County; SEBE DALE, Judge.
Colin Stockdale, Jackson, for appellant.
I. The judgment of the Court, sitting as judge and jury, was against the overwhelming weight of the testimony and evidence. Washington v. State, 98 Miss. 150, 53 So. 416; 33 Words and Phrases (Perm. Ed.) 389-402.
II. The appellant here and respondent below should have been discharged from liability under the bond in question since the Court had taken physical custody of the defendant and principal obligor before the forfeiture and judgment nisi was entered against appellant by ordering the sheriff to take custody of the defendant and deliver him to the State Insane Hospital at Whitfield, which order was carried out by the said sheriff. Benson v. Harris, 19 Ga. App. 328, 91 S.E. 491; Bowling v. Commonwealth, 123 Va. 340, 96 S.E. 739; Commonwealth v. Coleman, 2 Met. (Ky.) 382; Cook v. Harper, 78 Ind. App. 267, 135 N.E. 349; Ex parte Cribbs, 109 Fla. 286, 146 So. 912; Ex parte Mariano, 34 R.I. 534, 84 A. 1086; McDonald v. Commonwealth, 213 Ky. 570, 281 S.W. 538, 45 A.L.R. 1034; Medlin v. Commonwealth, 11 Bush (Ky.) 605; Metcalfe v. State, 57 Okla. 64; Miller v. Commonwealth, 192 Ky. 709, 234 S.W. 307; Miller v. State, 158 Ala. 73, 48 So. 360; Peoples v. Loomis, 60 Colo. 202, 152 P. 143; Reed v. State, 245 Ala. 173, 16 So.2d 310; Roberts v. State, 32 Ga. App. 339, 123 S.E. 151; Russell v. State, 134 Tenn. 640, 185 S.W. 693; State v. Mermann, 124 Mo. 502, 28 S.W. 2; State v. Orsler, 48 Iowa 343; State v. Winn, 356 Mo. 1095, 204 S.W.2d 927; 6 Am., Jur., Sec. 183 p. 137; 8 C.J.S. 150.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The judgment of the Court, sitting as judge and jury, was not against the overwhelming weight of the testimony and evidence.
II. The appellant here and respondent below was not discharged from liability under the bond in question because the Court took physical custody of the defendant and principal obligor before the forfeiture and judgment nisi was entered against appellant by ordering the sheriff to take custody of the defendant and deliver him to the State Insane Hospital at Whitfield, which order was carried out by said sheriff. Tedford v. State, 67 Miss. 363, 7 So. 352; 8 C.J.S., Sec. 82 (1) (3).
One Dearman was indicted at the August 1954 term of court for desertion of minor children, and he was arrested on warrant on August 17, 1954. On August 18, 1954, Dearman was released on a bail bond signed by appellant, R.B. Hall, Sr., and another, as sureties.
At the January 1955 term of court, Dearman was called and came not and judgment nisi was entered against appellant, R.B. Hall, Sr., and the other surety on Dearman's bail bond. Scire facias was served on appellant to appear on the third Monday of August, 1955, to show cause why the judgment nisi should not be made final. Appellant answered and moved to set aside the judgment nisi, and the answer and motion raised the issues later herein discussed.
The issues were tried by the judge without a jury, as agreed upon by appellant and the State, resulting in a final judgment against appellant and the other surety. Hall appeals.
(Hn 1) Appellant's first assignment of error raises the question whether the finding of the lower court that appellant signed the bail bond was against the overwhelming weight of the evidence. Appellant denied that he signed the bond, but there was ample proof that he did. The conflict in the evidence was for the trier of facts. Recital of the evidence would serve no good purpose.
The second assignment of error raises the question whether the bondsmen were released from liability because the court, at the instance of Dearman's attorney, who suggested that Dearman was insane, ordered Dearman committed to Mississippi State Hospital for examination to determine whether he was sane.
On August 25, 1954, Dearman, the indictee and principal obligor on the bail bond in question, through his attorney, filed a motion for a continuance and a suggestion that Dearman was insane. The suggestion of insanity was in the form of a motion that physicians be appointed to determine if Dearman was insane or whether he was sufficiently sane to be subjected to arraignment and trial. Thereupon, the court committed Dearman to the Mississippi State Hospital for examination for the purpose of determining whether he was sane. The order added:
"It is further ORDERED that a certified copy of this order be the sheriff's warrant and authority for committment and for said institution's acceptance and examination, treatment, and determination of said defendant."
Pursuant to the court's order, the sheriff carried Dearman to the Mississippi State Hospital. It appears that Dearman was found to be sane and was released by the Mississippi State Hospital. He failed to appear at the January term of court and it was then that the judgment nisi was entered against the sureties on his bail bond.
(Hn 2) While no Mississippi case is cited by appellant, he relies on the general rule stated in 6 Am. Jur., Bail and Recognizance, Sec. 183, p. 137, and 8 C.J.S., Bail, Sec. 77(b), p. 150. The general rule is that where one accused of crime, after having given a recognizance or bail bond and before default or forfeiture, is rearrested and imprisoned in the same offense in pursuance of proper authority, or upon his appearance, is ordered and taken into custody of the sheriff, such arrest or taking into custody operates as a discharge of the sureties.
(Hn 3) The obligation of the sureties in this case required them to produce Dearman at the next term of court, and "there to remain from day to day and term to term until discharged in due course of law." Appellant's contention has no merit. Dearman was not rearrested for the same or any other crime. What was done by the sheriff in taking Dearman to the Mississippi State Hospital was at Dearman's request, through his attorney, to determine whether Dearman was insane. There was no rearrest in the sense contemplated by the general rule relied upon by appellant, and there was no interference with the custody of the sureties such as the law could regard as an excuse for the failure of Dearman to appear at the next term of court. Cf. Tedford v. State, 67 Miss. 363, 7 So. 352.
Affirmed.
Roberds, P.J., and Kyle, Arrington and Ethridge, JJ., concur.