State v. Bowser , 232 N.C. 414 ( 1950 )

61 S.E.2d 98 (1950) 232 N.C. 414

STATE
v.
BOWSER et al.

No. 76.

Supreme Court of North Carolina.

September 27, 1950.

Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

P. H. Bell, Plymouth, for John T. Hall, appellant.

ERVIN, Justice.

Courts having jurisdiction to try and determine prosecutions for nonsupport of illegitimate children are empowered by statute to suspend the imposition or execution of sentences upon condition that offending parents make fixed contributions of money for the maintenance of such children. G.S. §§ 49-7, 49-8. Consequently the trial judge had plenary power to suspend the execution of the sentence of imprisonment upon the express condition that Bowser pay specified sums of money into the office of the clerk for the support of his child. This being true, the order of suspension remains effective until it is revoked and the enforcement of the sentence by commitment is ordered by the judge of the Superior Court of Washington County for breach by Bowser of the expressed condition duly established by pertinent testimony in an appropriate proceeding in open court. State v. Smith, 196 N.C. 438, 146 S.E. 73; State v. Gooding, 194 N.C. 271, 139 S.E. 436; State v. Phillips, 185 N.C. 614, 115 S.E. 893; State v. Hardin, 183 N.C. 815, 112 S.E. 593.

Neither the clerk nor his deputy had power to ignore the valid order of suspension made by the trial judge. It necessarily follows that the mittimus was invalid, and that the arrest and detention of Bowser thereunder was illegal.

This conclusion does not run counter to the statute embodied in G.S. § 15-186, which prescribes that "the clerk of the superior court, in all cases where the judgment has been affirmed (except where the conviction is a capital felony), shall forthwith on receipt of the certificate of the opinion of the supreme court notify the sheriff, who shall proceed to execute the sentence which was appealed from." Manifestly, this statute applies to final judgments where nothing further is required to be done by the court, and not to orders suspending the execution of sentences on compliance with conditions imposed.

A clerk of court has no inherent power to allow or take bail in criminal cases. He can do so only by virtue of some statutory enactment. 8 C.J.S., Bail, § 40. The Clerk of the Superior Court of Washington County was not empowered by any statute to require or take the bail bond in suit. This being so, he acted without authority of law, and such bail bond is void. 6 Am.Jur., Bail and Recognizance, section 21; City and County of San Francisco v. Hartnett, 1 Cal. App. 652, 82 P. 1064; Morrow v. State, 5 Kan. 563; Chinn v. Com., 28 Ky. 29; Wallenweber v. Com., 66 Ky. 68; Bunnell v. Commonwealth, 192 Ky. 592, 234 S.W. 187; State v. Caldwell, 124 Mo. 509, 28 S.W. 4; Territory ex rel. Thacker v. Reynolds, 15 Okl. 185, 82 P. 574; Territory ex rel. Thacker v. Woodring, 15 Okl. 203, 82 P. 572, 1 L.R.A., N.S., 848, 6 Ann.Cas. 950. Hence, it falls under the condemnation of the well settled rule that a bail bond which is void because taken without authority binds neither the principal nor his surety. State v. Jones, 100 N.C. 438, 6 S.E. 655; State v. Hill, 25 N.C. 398; State v. Mills, 13 N.C. 555; 6 Am.Jur., Bail and Recognizance, section 156.

We are unable to accept as valid the contention of the State that a surety is estopped to deny liability on a void bail bond exacted by a public official without warrant of law as a condition precedent to the discharge of the principal from unlawful imprisonment. Similar arguments have been rejected by the better considered decisions in other jurisdictions. State v. Ricciardi, 81 N.H. 223, 123 A. 606, 34 A.L. R. 609, and cases collected in the ensuing annotation.

Since the bail bond in suit was a nullity in law, the final judgment of forfeiture is

Reversed.