name of the accused in a bail bond, as, for example, the substitution. of the middle initial "K" for "C," may be reformed, and the bond. enforced. Where the name of the accused is spelt one way in the body of the bond and another way in the signature at the foot, but the pronunciation of the two spellings is practically identical and it does not appear that the surety was misled, the bond will be valid.10 But where the wrong person is arrested and recognizes under the name of the real offender, and subsequently escapes, neither he nor the sureties may be held on the bond. 11 Although a statute gives the form in which the state should be referred to in the bond, a slight variance will not avoid it.12 But where a statute authorizes a special remedy against parties to a bond, an instrument of the character specified is necessary to such remedy, and the requirements of the statute should be closely complied with,13 for a statutory bond which is void for want of authority to execute it cannot be enforced as a common law obligation.14 41. Execution of Undertaking.-The distinction between a recognizance and a bail bond is manifest in the requirements as to execution. A recognizance being taken in open court and entered upon the order book is valid without the signature or seal of any of the obligors. It is witnessed by the record and not by the signatures or seals of the obligors.15 A recognizance at common law was not signed by the party entering into it.16 But where a bail bond is required by statute and the manner of execution specified, the statute should be complied with. A seal, or a scrawl to which the law gives the same effect, is essential to such a bond; and an instrument to which there is no seal or scrawl is not a bond, although in the body thereof it is recited that the obligors or parties thereto have set their hands and seals, and the fact that the prisoner was released in consequence of the importunity of the bondsman and the bond was taken and approved in open court by the judge will neither estop the bondsman from setting up its invalidity for want of a seal, nor remedy the defect.17 A bail bond. may be taken on Sunday as well as on a week day. The purpose of guaranteeing bail is to afford the largest opportunity for relief from actual imprisonment, and it would be contrary to this policy to construe the law referring to contracts made on Sunday as lessening the opportunity and prolonging the imprisonment.18 And the fact that 9. Neininger v. State, 50 Ohio St. 394, 34 N. E. 633, 40 A. S. R. 674. 10. Murray v. People, 49 Colo. 109, 111 Pac. 711, Ann. Cas. 1912A 693. 11. State v. Messier, 105 Me. 210, 74 Atl. 18, 134 A. S. R. 541. 12. 65 Am. Dec. 549 note. 6 So. 831, 6 L.R.A. 821. 14. Territory v. Woodring, 15 Okla. 203, 82 Pac. 572, 6 Ann. Cas. 950, 1 L.R.A. (N.S.) 848. 15. Campbell v. State, 18 Ind. 375, 81 Am. Dec. 363 and note. 16. People v. Barrett, 202 III. 287, 67 N. E. 23, 95 A. S. R. 230, 63 L.R.A.. 82. 17. Williams v. State, 25 Fla. 734, 6 So. 831, 6 L.R.A. 821. 18. Hammons v. State, 59 Ala. 164, the bond was entered into in order to secure a release after an order of commitment had been made by a magistrate, which order was void by reason of the fact that it was made on Sunday, does not invalidate it, as it freed the principal from the imprisonment incident to his arrest. 19 42. Omission of Name of Surety or Failure to Fill Blanks.Where a statute provides that the recognizance of a person charged with a bailable offense may be taken with surety or sureties for his appearance, it is not necessary for the name of the surety to appear on the instrument in any other capacity than that of surety, and if he signed with the intention of becoming surety to procure the release of the accused, his liability is not affected by the omission of his name from the body of the recognizance. It is not the recognizance of the surety that is taken under such a statute; the only person recognized is the accused, and in the capacity simply of a surety, there is no better place for his name to appear on the instrument than at the foot after the name of the accused. But if his name did appear in the instrument, it would not for that reason be invalid. If the body of the instrument contains blank spaces for the names of sureties which are not filled out, the bond will be valid as against the person or persons signing after the principal. But where a bond is signed by two persons on a certain day, whose names appear in the body of the instrument, and by a third person, several days later, whose name does not so appear in the body of the instrument, this third signer does not become a party to the instrument so as to create a joint and several liability with the other parties.20 And where a surety signs a recognizance having the name of the obligee and the penalty blank but knowing who and what they are to be, and orally authorizes the sheriff to fill in the blank spaces, which is done, the obligation is binding. And a bail bond which gives the name of the principal in several places in the bond, but leaves a blank space where it should also appear, is not thereby made void. Nor will the failure to fill up a blank space in the recital of a bond intended for the specification of the nature of the crime render it invalid.3 43. Necessity for Description of Offense.-Describing in a recognizance or bail bond the offense with which the principal is charged is for the purpose of identifying the case and to inform the principal. and sureties of the obligations to be assumed. According to some 31 Am. Rep. 13; Weldon v. Colquitt, 62 Ga. 449, 35 Am. Rep. 128. 19. Weldon v. Colquitt, 62 Ga. 449, 35 Am. Rep. 128. 20. Murray v. People, 49 Colo. 109, 111 Pac. 711, Ann. Cas. 1912A 695 and note. 1. Brown v. Colquitt, 73 Ga. 59, 54 Am. Rep. 867. 2. Gorman v. State, 3 Tex. 112, 19 Am. Rep. 29. 3. State v. O'Keefe, 32 Nev. 331, 108 Pac. 2, 38 L.R.A. (N.S.) 309. 4. U. S. v. Zarafonitis, 150 Fed. 97, 80 C. C. A. 51, 10 Ann. Cas. 290. authorities a recognizance, being the voluntary act of the obligors, admits of a presumption of the regularity of the proceedings, and the surety will be presumed to know upon what charge the prisoner was held. The statement of the offense charged, therefore, is not considered as of the essence of the undertaking of bail, nor does it bear very materially upon the obligation; it is rather a matter for recital, and it bears upon the completeness of the instrument in form and historical detail. In accordance with this general view these authorities hold that a recognizance is valid although it contains no description whatever of the offense charged. But by the weight of authority it would seem to be necessary to the validity of a bail bond. or recognizance for it to set forth the offense with which the accused is charged, and a statute curing technical defects in bonds if they are substantially correct will not remedy the failure to describe the offense. 44. Sufficiency of Description.-The law is liberal in its requirements as to the accuracy and particularity of description of the offense in a bail bond or recognizance, and a statutory requirement that the "nature of the offense" be set forth is not subject to the same construction as in the case of the same words used in reference to commit The reasons for setting forth the particulars of the offense in commitments do not exist in the case of recognizances or bail bonds. Nor is it required that a bail bond or recognizance use the precise description required of an indictment; general terms are sufficient in specifying the offense. The general rule is that the bond or recognizance must substantially set forth an offense against the laws of the state. If the crime charged is one that has a definite and well understood name, such as arson, murder, burglary, rape, larceny and the like, it will be sufficient to indicate the charge by such general name; 10 if this is not done, enough must be stated in the undertaking to describe briefly some crime punishable under the law.11 Therefore a recognizance to answer to an indictment for larceny without further description is sufficient,12 and the fact that the recognizance refers to the offense as "grand larceny" does not invalidate it, although the statute generally describes the crime as "larceny," neither the accused nor his surety having been misled thereby.18 But it ap 5. State v. O'Keefe, 32 Nev. 331, 108 Pac. 2, 38 L.R.A.(N.S.) 309 and note. 6. 10 L.R.A. 847 note. 7. State v. O'Keefe, 32 Nev. 331, 108 Pac. 2, 38 L.R.A.(N.S.) 309 and note. 8. Murray v. People, 49 Colo. 109, 111 Pac. 711, Ann. Cas. 1912A 693. 10 L.R.A. 817 note. 9. 38 L.R.A.(N.S.) 312 note. 10. People v. Dennis, 4 Mich. 609, 69 Am. Dec. 338. 10 L.R.A. 847 note. 11. 10 L.R.A. 847 note; 38 L.R.A. (N.S.) 310 note. 12. People v. Dennis, 4 Mich. 609, 69 Am. Dec. 338. 13. Murray v. People, 49 Colo. 109, 111 Pac. 711, Ann. Cas. 1912A 693. 38 L.R.A.(N.S.) 312 note. pears that where the attempted description fails to set forth any of fense whatever, it is invalid as to the sureties thereon, if it is not shown that they were aware of the charge really preferred against the defendant, or that they consented to become sureties to answer any other charge than that stated, since they are not to be presumed to have any other information concerning the cause of taking such bond than that derived from the instrument itself nor to have intended to obligate themselves further or otherwise than therein stated.14 Notwithstanding the fact that a statute requires the recognizance to state whether the offense is a felony or a misdemeanor, it is not necessary to use either the word "felony" or "misdemeanor" although this if done would be sufficient. It is equally sufficient if the bail bond shows such matters as make it certain that the offense mentioned is a felony. or misdemeanor.15 It is not necessary that a recognizance recite that the offense was committed in the state, and its omission to do so does not render it void.16 45. Variance, Alternative Statement, or Duplicity of Statement.-If a bail bond or recognizance substantially describes the offense charged, the fact that the description varies somewhat from that named in the indictment, information or commitment does not invalidate it. Where, for example, a bond requires the accused to answer to an indictment for larceny from the person his securities must produce him to answer an indictment for simple larceny, for the greater offense named in the bond includes the lesser offense charged in the indictment, and if the lesser offense named in the bond forms an element of the greater offense named in the indictment, or if the two offenses contain a common element, the security will in either case be required to produce the body of his principal to answer the indictment. But it has been held that a bail bond which attempts to bind the accused and his sureties for an entirely different offense than that with which the principal is charged is invalid. In some jurisdictions where a rule more than ordinarily rigid in respect to descriptions in bail bonds has been laid down, it has been held that a bail bond or recognizance setting forth the offense with which the accused is charged in the alternative is invalid, and therefore a recital that the accused is charged with "carrying on or about his person a pistol" is insufficient, as stating the offense in the alternative. A bail bond 14. 38 L.R.A. (N.S.) 312 note. It has been held that where a recognizance is taken by an officer of limited authority, who is not empowered to act where the offense is punishable by death or life imprisonment, a recognizance which states simply that the accused is charged with burglary is invalid, where such crime is in some instances punishable with imprisonment for life. 38 L.R.A.(N.S.) 312 note. 15. U. S. v. Zarafonitis, 150 Fed. 97, 80 C. C. A. 51, 10 Ann. Cas. 200. 16. 38 L.R.A. (N.S.) 318 note. may also be void for duplicity, as where it is conditioned for the appearance of the principal to answer several distinct charges named.i 46. Condition of Bond.-Bail bonds vary somewhat in the form of the condition. Some require the principal to "appear and answer to the information and not depart without leave." 18 Others contain the further proviso that the principal will "abide the judgment and orders of the court." 19 Where the bond is drawn in the former terms the principal is not required to abide the judgment and sentence of the court, and his appearance before the court together with his entering a plea of guilty to the offense charged in the information, thereby putting himself in the power and control of the court, satisfies the conditions of the bond.20 Where the latter terms are used the obligation does not terminate with conviction but the defendant must abide the judgment thereon, and the recognizance is forfeited if he absents himself without being discharged. If the provision that the defendant shall not depart without leave is a substantive part of the recognizance the obligation is not discharged either because nothing was alleged against him by indictment, or because he was not indicted for the same offense as that upon which he was bound over, for the recognizance being express that the party shall not depart till he is discharged by the court, it cannot be satisfied unless the defendant is forthcoming and ready to answer any information exhibited against him, before he receives his discharge, as much as to that which he was particularly bound to answer. If for example the complaint charges the defendant with adultery and an indictment for lewd and lascivious cohabitation is found, the obligation of the recognizance is not affected. Or if a defendant is convicted of a lesser offense than that for which he was indicted he is still bound by his obligation to appear, abide the order of the court and not depart without leave. Where the recognizance requires the defendant to appear personally before the court on the first day of the next term or on the first day and from day to day during the term and not depart without leave, the obligation extends only to the one term specified.* 17. 38 L.R.A.(N.S.) 325, 327 note. 18. Campbell v. State, 18 Ind. 375, 81 Am. Dec. 363; Com. v. Teevens, 143 Mass. 210, 9 N. E. 524, 58 Am. Rep. 131; State v. Charles, 207 Mo. 40, 105 S. W. 609, 13 Ann. Cas. 565; Mishler v. Com., 62 Pa. St. 55, 1 Am. Rep. 377. 19. Com. v. Overby, 80 Ky. 208, 44 Am. Rep. 471; State v. Charles, 207 Mo. 40, 105 S. W. 609, 13 Ann. Cas. 565; State v. Funk, 20 N. D. 145, 127 N. W. 722, Ann. Cas. 1912C 743, 30 L.R.A.(N.S.) 211. 20. Mishler v. Com., 62 Pa. St. 55, 1 Am. Rep. 377. 38 L.R.A. (N.S.) 311 note. 1. Campbell v. State, 18 Ind. 375, 81 Am. Dec. 363; Com. v. Overby, 80 Ky. 208, 44 Am. Rep. 471. 2. Com. v. Teevens, 143 Mass. 210, 9 N. E. 524, 58 Am. Rep. 131. 38 L.R.A. (N.S.) 310 note. 3. Campbell v. State, 18 Ind. 375, 81 Am. Dec. 363. 4. State v. Dorr, 59 W. Va. 188, 53 S. E. 120, 115 A. S. R. 915, 8 Ann. Cas. 1016, 5 L.R.A.(N.S.) 402. |