Jones v. State , 63 Ala. 161 ( 1879 )

BEICEELL, 0. J.

The power and duty of a sheriff, to take recognizances in criminal cases, is derived from, and imposed by statute. A recognizance, taken by him without authority, is void. — Governor v. Jackson, 15 Ala. 703; Antones v. State, 26 Ala. 81; Gray v. State, 43 Ala. 41. A warrant of arrest was issued against Henry Johnson, by a justice of the peace, to answer an accusation of trespass after warning, — a misdemeanor. The warrant was, by its terms,returnable before the justice, on a day specified, seven days after its issúe, and six days after its service by the arrest of the defendant. The offense charged was not one of the misdemeanors of which the justice had final jurisdiction. The only jurisdiction he could exercise, was that of inquiring whether the offense had been committed, and whether there was probable cause to believe the defendant guilty of it; and to hold him to bail, oi’, in default thereof, to commit him to answer at the next term of the Oircuit Court. The sheriff, or his deputy, on executing the Warrant, could, if the defendant had requested, have taken bail for his appearance at the next term of the court having jurisdiction of the offense, to answer any indictment therefor found against him ; or, if the court was in sessiqn, for his appearance at such court. — Code of 1876, §4659. This is the only recognizance the sheriff had authority to take. Instead of exercising it, the sheriff discharged the defendant from custody, on a recognizance to appear before the justice on the day named. The recognizance was void, and should have been so pronounced by the Circuit Court, and the proceedings against the recognizors discharged.

The judgment is reversed, and a judgment here rendered discharging the recognizors.