State v. Emily , 24 Iowa 24 ( 1867 )

Cole, J.

l. bah. bond : í^mark'Ac-* ceptea.” I. Tbe grand jury of Keokuk county at tbe October Term, 1864, of tbe District Court, found three bills of indictment against Robert Searcey, Jo. Allen Martin and Matbias Carter, for larceny — borse stealing. At tbe February Term, 1865, Robert Searcey baying been arrested, and his bail having been fixed at nine hundred dollars, he gave bond with defendants as his- sureties, in the sum fixed, and was discharged from custody. The bond is in the usual form and as prescribed by section 4968 of the Revision, and was marked by the clerk “ Filed and approved this 10th day of February, 1865.” It is now objected that it was not also “ accepted,” and so marked by the clerk as specified by section 4968, supra. The objection is technical and cannot affect the right to recover upon the bond, especially so, in view of the language of the section itself, which provides that the bond, etc., “ may be substantially in the form ” specified. It is substantially in that form and sufficient.

2. —- accept-justification, II. The justification of the bail as indorsed on the bond is as follows, viz.: “We, William Searcey and James B. Emily, being duly sworn according to law, on our oaths say, we are freeholders worth twice the amount of this bond, over and above our debts in property not exempt from execution.”

The statute, section 4969, defines the qualification of bail as follows: “ Such bail must be a resident and householder or freeholder within this State. Such bail must be worth the amount specified in the undertaking, exclusive of property exempt from execution.”

The next section provides that the bail must justify and “ the affidavit must state that they each possess the qualifications prescribed in the last section.” It is now objected that the affidavit of these defendants does not show that they are “ residents of this State.” Before an accused who is held to bail, can demand a discharge upon tendering bond and surety, his bail must justify as required by the statute. But if a court or officer accepts bail without requiring such justification, which may well be held to be directory only, such fact will not render their bond void, or discharge them from liability thereon.

3. —_delimit: or cause. III. The accused, Robert Searcey, failed to appear at the October Term, 1866, aud a default was entered against him and his sureties. The title of the cause in which the default was entered as shown by the record, was “ The State of Iowa v. Robert Searcey and Jo. Allen Martin f omitting the name of Mathias Carter. This fact does not vitiate the default, since there can be no reasonable question as to the identity of the causes.

4_re-arrest of accused. IY. After the default was entered, the court ordered a bench warrant to issue upon which Robert Searcey, the accused, was re-arrested and held for trial. *piiis fact does not affect the right of the State to recover upon the forfeiture already taken. If he had appeared at the term of his default and excused his failure, the court might have discharged the forfeiture. Rev. § 4991. But this was not done.

Affirmed.