
    THE STATE v. J. H. HOLT, LEE HUNTER and J. A. CRESAP, Appellants.
    Division Two,
    May 23, 1911.
    BAIL BOND: Taken by Sheriff. The sheriff has authoriiy to admit to bail a person committed to jail by a justice of the peace, on account of failure to give bond, to await the action of the circuit court, where the amount of bail has been fixed by the justice and indorsed on the warrant of commitment. Sec. 5126, B, S. 1909, specially says that “when any sheriff . . . shall have a person in custody under a warrant of commitment on account of failing to find bail, and the amount of bail required is specified on the warrant, . . . such officer may take bail,” etc.
    Appeal from New Madrid Circuit Court. — Eon. Henry G. Riley, Judge.
    Affirmed.
    
      John 'E. Bradley, W. G. Bray and J. T. McKay for appellants.
    (1) When a justice of the peace, having in charge the examination of a person under arrest on a -charge of crime, issues his warrant of commitment and delivers it to the sheriff, the prisoner can he discharged on hail or otherwise only by a court or magistrate authorized to issue writs of habeas corpus. State v. Caldwell, 124 Mo. 509 ;' State v. Randolph, 26' Mo. 213; R. S. 1899, sec. 2469; R. S. 19Ó9, sec. 5048. (2) A bond taken by a-sheriff without authority of law as a bail bond, cannot be enforced as a common law bond. State ex rel. v. Frasier, 165 Mo. 242. (3) A bond or recognizance taken in a criminal case before an unauthorized person has no savor of validity about it. State v. Caldwell, 124 Mo. 509; State v. Nelson, 28 Mo. 13; State v. Watson, 54 Mo. App. 416; State v. Cross-white, 195 Mo. 1. (4) The taking of a bond by an unauthorized person is not an irregularity within the meaning of section 2800', E. S. 1899, which only applies to irregularities in form. State v. Crosswhite, 195 Mo. 1. (5) Warrant of commitment as used in section 2546, E. S. 1890, means a warrant issued by a court of record upon an information or indictment. State v. Jenkins, 24 Mo. App. 433. (6) When the defendant is in custody or under arrest for a bailable offense, the judge of the court in which the indictment or information is pending may let him to bail and take his bond or recognizance. E. S. 1899‘, sec. 2543; State v. Caldwell, 124 Mo. 509.
    
      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) Section 5126, E. S. 1909. The scire facias shows that Holt was in custody of the sheriff under warrant ‘ ‘ of commitment on account of failing to find bail, ’ ’ and the answer admits that the justice fixed the amount of bail at five hundred dollars, the penalty of the bond taken by* the sheriff. And, if the bill of exceptions is to be considered, it shows that the justice indorsed the amount of bail on the back of the warrant. If the bill of exceptions cannot be considered, then the allegations of the writ and answer raise the presumption that it was so indorsed. State v. Jenkins, 24 Mo. App. 435. The bond, consequently, was taken by the proper officer and in the proper amount. Besides, the statute eliminates technicalities in proceedings of this kind. R. S. 1909, sec. 5019. (2) The case of State v. Randolph, 26 Mo. 216-, was decided before the enactment of section 5126, and, besides, it was wholly different from the case at bar. There the justice of the peace attempted to take a bond under circumstances in which he did not then and would not now have any shadow of authority. In the case of State v. Caldwell, 124 Mo. 511, the clerk of the circuit court attempted to take bail. That case is also wholly unlike this. In the case of State ex rel. v. Fraser, 165 Mo. 258, the sheriff had done exactly what the sheriff in this case did not do. There he attempted to take bail in a sum different from that fixed by the court on arraignment. Here the sheriff took bail in the exact sum fixed by the justice on commitment. In the case of State v. Nelson, 28 Mo. 13, Nelson was indicted in St. Charles county, and a bond taken by a judge of the county court of Dallas county was held bad. The case of State v. Crosswhite, 196> Mo. 1, is so entirely different from the case at bar that comment is unnecessary. The case of State v. Jenkins, 24 Mo. Appi 433, is an authority against appellants. It certainly does not warrant the construction put .upon it in appellants’ brief. The case of State v. Watson, 54 Mo. App. 416, simply holds that the judge of the probate court, after indictment, cannot admit to bail in a felony case without the issuance of a writ of. habeas corpus.
   ROY, C.

— This is a proceeding by scire facias on a bond given for the appearance of the defendant Holt, in the circuit court of New Madrid county, to answer a charge of grand larceny.

The appellants herein, Lee Hunter and J. A. Cresap, were sureties on the bond. The defendant Holt forfeited the bond and the sureties were duly served with process. Judgment was rendered against them for the amount of the bond, and they have appealed.

Holt was' arrested on a warrant issued, on April 9, 1908, by J. D. Stop, a justice.of the peace of New Madrid county, and on the same day he was brought before the justice to answer. He waived preliminary examination, and bail was fixed by the justice at the sum of five hundred dollars, and in default of bail he was committed to jail to await the action of the circuit court. The amount of his bail as so fixed was at the time indorsed on the warrant' of commitment by the justice. Holt was held in custody by the jailer under the warrant of commitment from April 9th until April 18,1908, when he was released bn the bend now in controversy, which was taken and approved by the sheriff in the amount fixed by the justice.

The information charging Holt with grand larceny was filed September 10, 1908, in the circuit court, and a default was entered at the September term, 1908,

I. The point is made by the Attorney-G-eneral that the bill of exceptions was not signed by the trial judge, but as he concedes that the question in issue can be raised on the record proper, no further notice will be taken of that proposition.

II. The appellants contend that section 5126, Revised Statutes 1909, does not authorize the sheriff to admit to bail a person committed to jail by a magistrate on account of failing to give bond to await the action of the circuit court when the amount of bail has been fixed and indorsed on the warrant by the magistrate. That section is as follows:

“When any sheriff or other officer shall arrest a party by virtue of a warrant upon an indictment, or shall have a person in custody under a warrant of commitment on account of failing to find bail, and the amount of bail required is specified on the warrant, or if the case is a misdemeanor, such officer may táke bail, which in no case shall be less than one hundred dollars, and discharge the person so held from actual custody.”

It must he that a prisoner confined in jail under such circumstances is in the custody of the sheriff in accordance with provisions of section 1573, which provides as follows:

“The sheriff of each county in this State shall have the custody, rule, keeping and charge of the jail within his county, and of all the prisoners in such jail, and may appoint a jailer under him, for whose conduct he shall he responsible; hut no justice of the peace shall act as jailer, or keeper of any jail, during the time he shall act as such justice.”

None of the authorities cited by appellants supports their contention. On the other hand, the plain reading of the section in controversy supports the validity of the bond. That construction is supported by other sections of the statute in pari materia. It will be noticed that section 5048 provides for commitments to jail by courts and judges. Section 5041 directs the magistrate to indorse on the warrant of commitment the amount of bail required. This section plainly contemplates that the bail shall he taken pursuant to section 5126' by the sheriff, as was done in this case.

The judgment herein is affirmed.

Bond, G., concurs.

PEE CURIAM.

— The foregoing report of the commissioners is hereby adopted as the opinion of the court.  