This form of bond has been in some instances changed to what is known as a continuing bond which requires the defendant to appear from day to day and from term to term and abide the order of the court until the cause is determined, and not to depart without leave." VIII. LIABILITY OF BAIL 47. Liability for Appearance at Next or Subsequent Terms of Court. Ordinarily recognizances or bail bonds obligate the sureties to procure the appearance of their principal at the next and not at any succeeding term. Where a recognizance in a criminal case is conditioned "that the principal appear at the next term and thereafter from day to day and not depart without leave," or contains the further condition that he "shall abide the judgment of the court," the surety is bound for the appearance of the prisoner during the first term of the court only, and if the court adjourns without making any order, the sureties are exonerated from their recognizance. Before the expiration of the term it is the duty of the state to have the prisoner called and to require a new recognizance for his appearance at the next term thereafter, and on failure of the prisoner to enter into the new recognizance he should be committed to jail. Therefore if the defendant appears at the proper term to answer the charge preferred against him, ready to obey any order that may be made by the court, and the court fails to exercise its power, not making an order either to commit the defendant or otherwise to secure his appearance at some subsequent time, the conditions of the bond or recognizance are fully complied with and the sureties are relieved of further liability upon their bail bond. The rule is the same whether the case is continued by express order or not; there is no substantial difference, since the effect of a failure to enter an order of continuance is not to abate the cause but rather to continue it generally. To avoid the trouble of renewing the security it is sometimes the practice, when the bail consent, to forfeit the recognizance and respite it until the next term. A continuing recognizance is provided for by statute in some jurisdictions, which extends the obligation of the surety from term to term, until the accused is discharged or surrendered to the proper official.9 5. State v. Hazzard, 174 Ind. 125, 91 N. E. 502, Ann. Cas. 1912B 1187; State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann. Cas. 1912D 191. 6. 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; 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. There is some authority to the contrary; see Ann. Cas. 1912B 1188 note. 7. State v. Charles, 207 Mo. 40, 105 S. W. 609, 13 Ann. Cas. 565. 8. 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. 9. State v. Hazzard, 174 Ind. 125, 91 N. E. 502, Ann. Cas. 1912B 1187. See supra, par. 46. 48. Liability to Secure Appearance of Principal During Trial.— A bail bond given in a criminal case is a contract between the sureties and the government that if the latter will release the principal from custody the sureties will undertake that he shall personally appear at a specified time and place to answer. If the condition of the bond is broken by the failure of the principal to appear, the sureties become absolute debtors of the government for the amount of the penalty.10 The common-law rule is that when bail is given in a criminal case and the principal is discharged from the custody of the law, he is regarded not as freed entirely, but as transferred to the friendly custody of the sureties on his recognizance, and it is their right at any time to arrest and deliver him again to the custody of the law in exoneration of their obligation. In order fully to discharge their obligation they are obliged to secure their principal's appearance and put him as much under the power of the court as if he were in the custody of the proper officer.11 If they do this they seem to have answered the end of the law and to have done all that can reasonably be required of them.12 It is clear, however, that the mere appearance of the prisoner does not fulfill the requirement of the obligation and release the surety, if he departs without leave prior to conviction. It is at all times in the discretion of the court at any stage of a criminal trial to call the defendant and forfeit his recognizance if he is not present to answer.18 And if the defendant appears and continues his presence in court until the jury retire to consider their verdict in his case, whereupon he absconds, the bail can still be forfeited. 14 49. Liability for Appearance of Principal After Conviction Denied. There is some difference of opinion as to whether the liability of the sureties on a bail bond ends with the conviction of the principal or continues until the execution of the judgment. Where the bond requires the principal to appear and defend the information and not to depart without leave, it has been held that the liability of the sureties terminates with the conviction of the accused, either by the entry of a plea of guilty, or by the return of a verdict finding the defendant guilty. Under the conditions of the bond he, of course, cannot absent himself during the progress of the trial or before conviction, but after conviction he is, when present, placed directly in the control of the court, and while there may be no express order of the court directing the sheriff to take the prisoner into custody, there is under such circumstances always an implied order that the sheriff shall do so, and the defendant is therefore as legally in the custody of the sheriff as if the bail had delivered him. If the sheriff 10. U. S. v. Zarafonitis, 150 Fed. 97, 80 C. C. A. 51, 10 Ann. Cas. 290. 11. State v. Schenck, 138 N. C. 560, 49 S. E. 917, 3 Ann. Cas. 928. 105 S. W. 609, 13 Ann. Cas. 565. 13. Mishler v. Com., 62 Pa. St. 55, 1 Am. Rep. 377. 14. Miller v. State, 158 Ala. 73, 48 12. State v. Charles, 207 Mo. 40, So. 360, 20 L.R.A. (N.S.) 861. actually takes the defendant into custody the bail are of course exonerated, but even if he does not, the bail are discharged by operation of law unless his recognizance expressly secures his freedom until final sentence.15 50. Liability for Appearance of Principal After Conviction Recognized. It has, however, been held in considering a bond with a similar condition, that the conviction does not by virtue of its own force. put the defendant in the custody of the court or of the sheriff. This is done by an order from the court given on its own motion or on application of the solicitor. It is said that a recognizance (or bail bond) in general binds to three things: (1) to appear and answer either to a specified charge or to such matters as may be objected, (2) to stand and abide the judgment of the court, and (3) not to depart without leave of the court, and that each of these particulars is distinct and independent. The extent of the duty and obligation of the sureties therefore is to see to it, that the principal, at all times during the term of the court to which he is bound to appear, is present to answer the call of the court and to do what the law may require of him. If they fail in this respect, they have not kept him under the power of the court as if he had been in the custody of its proper officer. It must not be inferred that the surety is thereby required to do something not stipulated in his bond, for the obligation thus imposed is nothing more than what the law reasonably considers to be within the condition of his undertaking.16 No question as to the liability of bail after conviction can arise where the bond stipulates that the principal is to abide the judgment of the court and not depart without leave. Under such a condition the sureties on a bail bond must have their principal in court to answer to his sentence, and his departure prior to sentence is a breach of the bond.17 51. Liability for Appearance in Case of Appeal or Motion for New Trial. After the conviction of an accused, for whose enlargement bail has been given, and his passing into custody of the sheriff, the court cannot, without the knowledge of the sureties, upon granting him a new trial, permit him to go at large under the former bond. The placing of the prisoner in the custody of the sheriff released the sureties, and in order to hold the sureties for a further appearance of the defendant a new contract is required. There is no difference in principle between the status of sureties on a bail bond after the judg ment of conviction has been set aside and that after the judgment has been annulled on motion for new trial. The judgment in either 15. Miller v. State, 158 Ala. 73, 48 So. 360, 20 L.R.A. (N.S.) 861: State v. Charles, 207 Mo. 40, 105 S. W. 609, 13 Ann. Cas. 565 and note. 16. Campbell v. State, 18 Ind. 375, 81 Am. Dec. 363; State v. Schenck, 138 N. C. 560, 49 S. E. 917, 3 Ann. Cas. 928. 17. 115 A. S. R. 923 note; 3 Ann. Cas. 930 note. See supra, par. 46. case is set aside.18 Where a defendant has been convicted and sentenced and the judgment is subsequently reversed, and a new trial granted, he is not entitled to be released on the bond originally entered to secure his release before trial, for that bond has become functus officio by the trial and sentence. And if an appeal bond has been entered he may be held under that to appear for the new trial, according to some authorities. The contrary doctrine has, however, been held in some jurisdictions, and therefore where an appeal has been taken from a judgment and bail entered pending the appeal, this will have served its purpose in case of a reversal and the sureties thereon will be released, for the case thereupon is sent back for a new trial, and the defendant's original bond is revived. The same conclusion would hold in cases of mistrial, new trial or reversal.19 52. Liability for Appearance on Change of Venue. The liability of bail to procure the appearance of the principal is not released by a change of venue, but they are as much bound to produce their principal for trial in the court to which the venue is changed as in the court originally contemplated by the recognizance, if the change is made upon application of the accused or otherwise, for the right to transfer the cause involves the right to transfer all proceedings incident to and belonging to the cause, especially the bond to enforce the attendance of the defendant. There usually is no stipulation in a recognizance or bail bond, either express or implied, that the state shall not change the forum for the trial of the principal, and the undertaking is tantamount to an agreement that the principal shall appear either in the court designated or some other tribunal to which the case may be transferred by law, and in which the principal may be tried for the offense with which he stands charged, and this is true whether the statute authorizing the transfer was enacted before or after the execution of the bond. Where, however, the attempted transfer is without legal authority, the failure of the accused to appear in the court to which the case is attempted to be transferred is not a breach of the recognizance. Where the trial of a case is properly removed from one court to another, the non-appearance of the accused in the court originally having jurisdiction will not work a forfeiture of the bond, for the recognizance follows the principal case and that court is without jurisdiction to render judgment upon it. These doctrines have not always been adhered to, and authority may be found for the statement that where a recognizance is conditioned for appearance in a named court, and there is no condition that the accused shall obey the further orders of the court, a failure to appear 18. Miller v. State, 158 Ala. 73, 48 So. 360, 20 L.R.A.(N.S.) 861 and note. 13 Ann. Cas. 569 note. 19. Miller v. State, 158 Ala. 73, 48 So. 360, 20 L.R.A.(N.S.) 861 and note. in a court to which a change of venue is taken is not a breach of the condition.20 53. Liability for Appearance of Accused in Person.-At common law, for lesser misdemeanors punishable only with a fine the presence of the defendant at the trial was not essential, but for misdemeanors punishable with imprisonment it was essential. This rule has been carried into the statutes of some jurisdictions which provide that no indictment for a felony shall be tried unless the defendant is personally present during the trial, nor shall any person indicted for a misdemeanor be tried unless he is present at the trial either personally or by his counsel. Under such a statute it has been held that appearance by attorney for a defendant charged with a misdemeanor will not necessarily discharge the recognizance, as it is discretionary with the trial court whether it will permit an indictment to be answered by counsel for the defendant, and furthermore, even if counsel is permitted to answer, that fact does not satisfy the condition of the recognizance, although the trial court may in its discretion so hold. Its decision in the matter is not reviewable. Nor does the fact that the defendant appeared by attorney and stood ready to pay whatever fine and costs might be imposed fulfill the condition of the bond. A contrary view has, however, been taken in some of the decisions, wherein it has been held that it is the defendant's right in misdemeanor cases to appear by counsel rather than in person where the statute provides that the personal appearance of the accused is unnecessary, the object of bail in cases of misdemeanor being simply to secure compliance with the judgment when rendered, and it is not necessary for counsel to bring money into court, to pay any fine or cost which might be imposed. The statutes in some states contain provisions which to some degree affect the decisions of the courts. For example in at least one jurisdiction it is provided that for the purpose of judgment, if the conviction is for an offense punishable by imprisonment, the defendant must be personally present; if for a fine only, he must be personally present, or some responsible person must undertake if he is absent to pay the judgment and costs. Under such a statute it has been held that it rests in the discretion of the court whether it shall proceed with the trial in the absence of the defendant, but the discretion ordinarily should be exercised by refusing to proceed in cases where the punishment is imprisonment, and, in any event, the defendant must be present at the time sentence is pro 20. State v. Hazzard, 174 Ind. 125, 91 N. E. 502, Ann. Cas. 1912B 1187 and note. 1. State v. Johnson, 82 Kan. 450, 108 Pac. 793, 27 L.R.A.(N.S.) 943. 2. Warren v. State, 19 Ark. 214, 68 Am. Dec. 214; State v. Johnson, 82 Kan. 450, 108 Pac. 793, 27 L.R.A. (N.S.) 943 and note. 3. Warren v. State, 19 Ark. 214, 68 Am. Dec. 214. 27 L.R.A.(N.S.) 943 note. |