Rogers v. State , 79 Ala. 59 ( 1885 )

SOMERYILLE, J.

Tire facts averred in the pleas constitute a good defense to the action. These facts being established, there was no such failure to appear on the part of Holifield as to forfeit the undertaking of the sureties on his bail-bond, in the manner and at the time such forfeiture was taken. The practice on this subject was settled in the case of Goodwin v. The Governor, 1 Stew. & Port. 465, which was decided' as early as the year 1832, and has never been since overruled. It was there held, that when a party was recognized to appear at a particular term of the Circuit Court, to answer for an offense with which he was charged, and the grand jury failed to find an indictment against him, and the cause was not continued for further investigation, this operated as a discontinuance, and discharged the accused, in the absence, at least, of any forfeiture being taken for sufficient reasons at such term of the court.

There are cases, in other States, which hold that the accused is not discharged, until the court enters of record an order of exoneration to this effect. But we see no harm to ensue from adhering to the rule settled in Goodwin's Case, supra. If the accused is not called at the term of the court at which he was to appear by the express stipulation of his bond, and no indictment is found against him by reason of the grand jury’s ignoring the bill, and the Circuit Court makes no order authorizing a continuance of the investigation at the ensuing term, the sureties have a right to believe that they arc discharged from the obligation of their undertaking. If one term of the court can be passed without action by the grand jury, or the court, why not another? And if more than one, when are the sureties to know that the legal custody of the accused, with the power to arrest and deliver him into the hands *of the sheriff, has ceased, or been abrogated ?

The safer practice, perhaps, to prevent misunderstanding, is for the court to have the accused discharged by proclamation, and by entering of record au exoneretur/ though this course is not deemed necessary, nor is it believed to be customary in this State. But, where it is desired to authorize a continuance of the investigation by the grand jurors, the court, in order to hold the sureties, should make an order to this effect, showing a refusal to discharge the principal.—1 Bish. Cr. Proc. (3rd Ed.) § 870 a, § 264 f; Rex v. Palmer, 6 Car. & P. 652; Knott v. Sargent, 125 Mass. 95.

The discontinuance of this cause operated as a legal discharge of the accused. The Circuit Court erred in not so ruling.

The judgment is reversed, and the cause remanded.