RULING CASE LAW VOLUME III BAGGAGE See CARRIERS. BAIL AND RECOGNIZANCE I. INTRODUCTORY II. THE RIGHT TO BAIL III. AUTHORITY TO ADMIT TO BAIL IV. PROCEEDINGS TO ADMIT TO BAIL V. AMOUNT AND CHARACTER OF BAIL VI. EFFECT OF ALLOWANCE AND ENTRY OF BAIL VII. THE UNDERTAKING OF BAIL OR RECOGNIZANCE VIII. LIABILITY OF BAIL IX. DISCHARGE OR EXONERATION OF BAIL X. RIGHTS OF BAIL XI. FORFEITURE OF BAIL XII. REMISSION OF FORFEITURE OR PENALTY XIII. PROCEEDINGS ON RECOGNIZANCE or BAIL BOND I. Introductory 1. Definitions and Scope of Article 2. Distinction Between Civil and Criminal Bail II. The Right to Bail GENERAL PRINCIPLES 3. Common Law Rule and Its Development 4. Discretion of Court Generally 5. Discretion in Capital Offenses 6. Determination of What Constitutes Capital Offense CONSIDERATIONS AFFECTING DISCRETION 7. Character of Evidence Generally 8. Variant Statements of Rule 9. Burden of Proof STAGE OF PROCEEDINGS 10. Effect of Indictment Generally 11. Effect in Capital Cases Under Constitutional or Statutory Provisions 12. Presumptions and Burden of Proof in Capital Cases After Indictment 13. Right to Bail During Trial 14. Right to Bail After Conviction EXCEPTIONAL CIRCUMSTANCES AND PROCEEDINGS 15. In General 16. Failure to Indict or Convict, Mistrial or New Trial 17. Effect of Delay in Indictment or Trial 18. Health of Accused 19. Conduct of Accused or Acquiescence of Prosecutor 20-21. Extradition and Exclusion Proceedings III. Authority to Admit to Bail 22. In General 23 Nature of Authority to Take Bail 24. Authority of Clerks of Courts 25. Delegation of Authority by Court IV. Proceedings to Admit to Bail 26. Scope of Testimony at Hearing Generally 27. Effect of Indictment Under Common Law and English Rule 28. Effect of Indictment Under American Rule 29. Review of Decision 30. Effect of Review on Subsequent Trial 31. Amount V. Amount and Character of Bail 32. Deposit of Money in Place of Entering Bail 33. Statutes Authorizing Deposit of Money 34. Character of Sureties VI. Effect of Allowance and Entry of Bail 35. Allowance as Res Judicata 36. Effect on Right to Habeas Corpus 37. Effect Right to Speedy Trial or Exemption from Service of Process VII. The Undertaking of Bail or Recognizance 38. In General 39. Undertaking of Civil Bail 40. Effect of Technical Defects 41. Execution of Undertaking 42. Omission of Name of Surety or Failure to Fill Blanks 43. Necessity for Description of Offense 44. Sufficiency of Description 45. Variance, Alternative Statement, or Duplicity of Statement 46. Condition of Bond VIII. Liability of Bail 47. Liability for Appearance at Next or Subsequent Terms of Court 48. Liability to Secure Appearance of Principal During Trial 49. Liability for Appearance of Principal After Conviction Denied 50. Liability for Appearance of Principal After Conviction Recognized 51. Liability for Appearance in Case of Appeal or Motion for New Trial 52. Liability for Appearance on Change of Venue 53. Liability for Appearance of Accused in Person 54. Effect of Want of Jurisdiction or Illegality of Detention 55. Effect in Civil Proceedings 56. Effect of Respite or Stay of Execution 57. Effect of Failure to Find or Destruction of Indictment, or Invalidity of Order of Commitment 58. In General IX. Discharge or Exoneration of Bail 59. Surrender of Principal 60. Surrender of Principal in Civil Bail 61. Subsequent Arrest and Detention of Principal in Same Jurisdiction for Different Offense 62. Subsequent Arrest Followed by Escape or Release on Bail 63. Subsequent Arrest for Same Offense 64. Subsequent Arrest and Detention in Another Jurisdiction for Different Offense 65. Subsequent Arrest and Detention by Military Order 65. Mistake as to Time or Place for Appearance 67. Death or Sickness of Principal 68. Circumstances Exonerating Bail in Civil Cases X. Rights of Bail 69. Right to Arrest Principal 70. Right to Arrest in Another County, State or Country 71. Right to Indemnity from Property of Principal in General 72. Right to Indemnity from Property of Principal or Third Person Under Express Contract 73. Distinction Between Civil and Criminal Bail as to Right XI. Forfeiture of Bail 74. When Forfeiture May Be Entered 75. Necessity for Calling Accused and Sureties and Entering Default 76. In General XII. Remission of Forfeiture or Penalty 77. Remission of Penalty After Judgment 78. Remission of Penalty After Term XIII. Proceedings on Recognizance or Bail Bond 79. Nature of Proceedings IN CRIMINAL CASES 80. Proceeding by Seire Facias or Action on Bond 81. Defendant's Pleas and Defenses 82. Verdiet and Judgment IN CIVIL CASES 83. In General 84. Conclusiveness of Judgment in Original Action I. INTRODUCTORY 1. Definitions and Scope of Article.-As used in one sense the word "bail" means the release of a person from custody upon the undertaking of two or more persons for him, and also upon his own recognizance, that he shall appear to answer the charge against him at the time appointed. It is a delivery or bailment of a person to his sureties, so that he is placed in their friendly custody instead of remaining in prison.1 The word is also used to designate those persons who become securities for the appearance of the defendant, and also in some cases to designate the undertaking itself, although this is more frequently referred to as the bail bond or recognizance. These 1. People v. Barrett, 202 Ill. 287, 67 N. E. 23, 95 A. S. R. 220; Rex v. Fortier, 13 Quebec K. B. 251, 1 Ann. Cas. 10. 2. Henderson v. Lynd, 2 Mart. O. S. (La.) 57, 5 Am. Dec. 726; State v. This ar definitions apply to bail in civil as well as in criminal cases. ticle treats of both civil and criminal bail, a distinction between the two being drawn where such is manifest. It also treats jointly, as the title indicates, of bail and recognizance, the distinction in most cases not being substantial and ordinarily being indeterminable, but where the difference is derivable from the cases it has been indicated. The proceedings under which applications for bail may be made are treated only in so far as they are peculiarly connected with the subject; this is true also of the form and incidents of the bond, the rights and liabilities of the bail as sureties, particularly in civil cases, and the proceedings on the bond or recognizance. The general principles of law relating to bonds, and those relating to bonds in particular proceedings, in the nature of a recognizance, such as bastardy bonds,5 and bonds to keep the peace, are not considered. 6 2. Distinction Between Civil and Criminal Bail.-In many particulars the rules relating to criminal and civil bail are the same. In either case the principal is considered as being released from the custody of the law and placed in the custody of keepers of his own selection. But a distinction exists in a number of instances due to the different purpose inherent in the two modes of procedure. The object of bail in civil cases is either directly or indirectly to secure the payment of a debt or other civil duty; while the object of bail in criminal cases is to secure the appearance of the principal before the court, for the purposes of public justice. Payment by the bail in a civil case discharges the obligation of the principal to his creditor, and is only required to the extent of that obligation, whatever may be the penalty of the bond or recognizance; while payment by the bail in criminal cases, though it discharges the bail, does not discharge the obligation of the principal to appear in court; that obligation still remains. While the subjects of civil and criminal bail are not here treated separately, the distinction between the rules governing the two species of bail, where material, is pointed out. II. THE RIGHT TO BAIL General Principles 3. Common Law Rule and Its Development.-At common law a sheriff could not be compelled to take bail for one whom he had arrested in a civil case upon mesne process, although he could do so 3. Henderson v. Lynd, 2 Mart. O. S. (La.) 57, 5 Am. Dec. 726; Johnson v. Boyer, 3 Watts (Pa.) 376, 27 Am. Dec. 363. 4. See BONDS. 6. See CRIMINAL LAW. 7. State v. Schenck, 138 N. C. 560, 49 S. E. 917, 3 Ann. Cas. 928; Carr v. Davis, 64 W. Va. 522, 63 S. E. 326, 16 Ann. Cas. 1031, 20 L.R.A. (N.S.) 58. |