Holcombe v. State , 99 Ala. 185 ( 1892 )

HARALSON, J.

I. The first ground urged against the judgment nisi and scire facias is, that they do not show that any indictment had been found against the defendant, Holcombe. But, this objection is technical, and not meritorious. The judgment nisi and srirk facias are each headed, “The State v. Richard Holcombe, et al. Indictment for burglary.” Great particularity is not required in such proceedings, and the legislature has taken care to provide against technical defenses of this character, to such undertakings. The essence of-all undertakings of bail is the appearance of defendant at court, and the bail is forfeited by the failure of defendant to appear, although the offense, judgment or other matter is incorrectly described therein, if the particular matter or case to which the undertaking is applicable, is made to appear to the court.—Code, § 4431; Hanna's Case, 60 Ala. 100; Vassar's Case, 32 Ala. 586; Eldred’s Case, 31 Ala. 393.

II. For the same reasons, objections 2-5 can not be sustained. They proceed upon the idea, that because the defendant was bound over to answer an indictment for “burglary and grand larceny,” therefore, if the indictment was for either, or both, separately, and not jointly, the bail-bond is not applicable to such a finding of the grand jury. The section of the Code, to which we have above referred, as was held by this court, in Gresham’s Gase, 48 Ala. 627, must be taken to apply to cases in which the indictment embraces or includes the particular offense mentioned in the undertaking of bail; as an indictment for manslaughter, in an undertaking of bail for murder; or, as here, for burglary, in one for burglary and grand larceny. The indictment, in a proper case, might have included both, or either.—Bell & Murray's Case, 48 Ala. 694.

III. The 6th-8th and 12th grounds question the authority of the judge who ordered the sheriff of Madison county to take bail, and the competency of the sheriff to take it, in obedience to such order. The judge had the defendant before him on habeas corpus, for the purpose, as is manifest, of fixing his bail, which the magistrate who committed him, neglected to do. In all cases coming before a judge on habeas corpus, if it is found the applicant has committed no offense, he is discharged; but, if it is ascertained he has committed one, and it is bailable, he must be admitted to\ bail, on offering sufficient bail; or, the amount required, must be indorsed on the warrant, as well as the court to which he is required to appear, and he may be afterwards discharged by the sheriff of the county, on giving bail, in the amount so required. — Code, §4782. Here, the judge, as is shown, indorsed his order upon the copy of the mittimus, which-was made an exhibit to the petition. It is objected, he did not indorse it on the warrant. That is the very paper he did indorse it on, — the warrant of the sheriff to detain him, the mittimus, — for the original never accompanies the writ, or the return of the sheriff to the writ of habeas corpus, but a copy of it. The jailer keeps the original.—Code, § 4775. Besides, the requirement is merely directory.—Callahan’s Case, 60 Ala. 65; Merrill’s Case, 46 Ala. 82.

The order prescribed the amount of bail — $1,000—and, in substance, prescribed the court to which the defendant should make his appearance. The order was, that defendant, Holcombe, be admitted to bail, in the sum prescribed, “payable and conditioned as required by law, with securities to be approved,” &e. The mittimus, under which he was held, a copy of which, as has been stated, was attached to the writ of habeas corpus, under which the judge was proceeding to fix bail, made known the court to which he was bound to appear, and the order was indorsed on that paper. The order, and the warrant or mittimus on which it was written, went together to the sheriff, as one paper. He had no difficulty, nor did the defendant, in understanding from the two, to which court he was to be bound over. That section of the Code, 4782, was, therefore, substantially complied with, in all that was done.

IY. But, it is objected, that the order ought to have been given to the sheriff of Marshall, to the Circuit Court of which county the defendant was bound to appear, and not to the sheriff' of Madison. It was with the sheriff of Madison, however, and not of Marshall, the judge was dealing. He had no authority, by virtue of the proceeding before him, over the latter, but he had over the former.—Dunbar v. Frazer, 78 Ala. 529. If the judge had refused bail, his action was subject to review by this court. Section 4413 of the Code provides, that when an application of the kind is refused in vacation, the evidence may be set out on exceptions, and application made thereon to the Supreme Court. And, if the Supreme Court grants the bail, its order must fix the amount required, and direct the same to be taken by the chancellor or judge to whom the primary application was made, or by the sheriff of the comity in which the defendant is confined. — Code, § 4414. If, therefore, bail had been refused by the judge, and his action had been reviewed by this court, and bail allowed, we would, in such case, have ordered the sheriff of Madison to take the bail. Such an order would be, to require tliat to be done, wbicli, in tbe first instance, ought to have been done, und which the judge erroneously refused to do, clearly showing that the sheriff of Madison, who had the custody of defendant, was the proper officer to be ordered to take the bail.

Y. The criticism on the bail-bond, that it is imperfect, and, therefore, invalid, because the words, “the offense of,” do not appear in the bond, as they do in the form laid down in the Code, before the word, burglary, — -making it read, “to answer for the offense of burglary,” instead of, “for burglary” — can not be sustained. What is the difference in the undertaking with or without these words ? Who was misled by their omission ? The word burglary, ex vi termini, imports an offense.

What we have said is sufficient to dispose of all the other objections raised by defendants. There is no error in the record, and the judgment must be affirmed.