
    Undine B. McCaleb et al. v. State of Mississippi.
    [50 South. 555.]
    CRIMINAL Law and Procedure. Bail. Code 1906, § 1466. Forfeiture. Evidence to connect bond with offense.
    
    A forfeiture of a bail bond conditioned for tbe principal obligor’s appearance to answer for an “assault with intent to kill,” cannot be taken on his failure to appear and answer to an indictment for murder, in the absence of all evidence connecting the bond with the crime charged in the indictment, and is not warranted by Code 1906, § 1466, providing that such a bond shall be valid irrespective of irregularities where the accused was freed from custody upon its execution.
    Feom: the circuit court of Claiborne county.
    Hon. John N. Bush, Judge.
    
      Mrs. McGaleb and another, appellants, were sureties on the bail bond of one James Harper. A forfeiture was taken on the bond and judgment in favor of the state, appellee, was rendered against them from wbicb they appealed to the supreme court. The facts are fully stated in the opinion of the court, and the statutes invoked by the state are quoted in the dissenting opinion.
    
      J. McG. Martin, for appellants.
    The indictment against Harper charges him with murder, not assault with intent to kill. There is nothing in- the whole record to show that Harper was under indictment for assault with intent to kill. Hence, the question of jurisdiction is raised by plea to jurisdiction. The bond given by appellants was for the appearance of Harper before the circuit court, to answer the state on a charge of assault to kill, without reciting upon whom the assault was made. Before the court could entertain jurisdiction to enter against appellants a judgment nisi, or final, it must affirmatively appear that an indictment was pending, charging Harper with assault to kill, either a person named in the bond, as the person so assaulted, or by proper proof that, if a person is not named in bond, upon whom such assault was made, then the bond was intended to hold him to answer such assault upon the person, named in an indictment for assault with intent to kill. There is neither indictment for assault with intent to kill any one, nor is there proof that Harper made an assault upon any one with intent to kill, connecting said bond with the crime. Then, the elements of jurisdiction, on this line are all wanting. Turn now to the actual indictment presented, charging one Harper with murdering one John Haywood. If there were proof that this is the matter for which bond was given; that John Haywood was the man upon whom assault to kill was made; that after appearance bond was given, John Haywood died, and Harper was indicted for murder, instead of assault to kill, and that the two offenses were one and tbe same; and that, although the name of the person assaulted was omitted from the bond, yet, in fact and truth it was the man, John Haywood, who afterwards died, and for killing whom Harper is indicted, then by proper recitals, properly setting out the facts, and properly describing the bond, in the judgment nisi, there would be something to maintain jurisdiction. However, there is no indictment, connected by proof or otherwise, with said bond. Hence, the jurisdiction of the court is nowhere made to appear. The indictment stands alone, with no bond forfeited, which was given to insure the presence of Harper to answer for the murder of John Haywood or any other person. The sole basis of a judgment msi is that a bond is in question, which binds the principal to answer the state on a charge named in the indictment, and which is the charge for which the persons became surety. It is submitted, then, that in the existing state of the record the court was without any affirmative matter upon which to enter either judgment nisi, or judgment final.
    The bond given by appellants recites that it is for the appearance of Harper before the circuit court to answer the state of Mississippi, “on a charge of assault to kill.” It does not state upon whom the assault to kill was made. No indictment whatever is presented against Harper for assault to kill any one. Yet the scire facias recites that he was called to answer such charge and that he made default. The indictment charges murder of one John Haywood. Unquestionably, then, there is no record upon which to base such forfeiture, or the issuance of such scire facias.
    
    In following cases, it is held that “the bail is liable for default only in the event an indictment is found against the principal for the particular offense set forth in the undertaking.” Gray v. Slate, 43 Ala. 41; People v. Stopper, 1 Idaho, 158; Hyde v. Gross, 25 Or. 543; State v. Kyle, 99 Ala. 256; Mally v. State, 3 Tex. App. 202; Foster v. State, 27 Tex. 237; Duke v. Sane, 35 Tex. 424; 3 Am. & Eng. Ency. of Law, 712,. 713.
    
      “The offense with, wbicb the accused stands charged must be stated in tbe recognizance or bail bond with sufficient clearness to show of what offense he is in fact accused.” 3 Am. & Eng. Ency. of Law, 696; Bean v. State, 2 Smed. & M. 200."
    It is determined that sureties'have a right to stand upon the terms of their obligation, and, therefore, if the recognizance is to answer an indictment for one offense, the bail are not liable for the failure of the principal to appear and answer to an indictment for an offense of an entirely different character.” •Gray v. State, 43 Ala. 41.
    
      “Scire facias must allege that the accused was released from custody by reason of the giving of the recognizance.” 5 Cy'c. 143.
    
      J. B. Stirling, attorney-general, for appellee.
    Harper was bound to answer the indictment of murder under .the bond in this case, and having failed to appear and plead to the indictment, judgments nisi and final were proper.
    The greater crime included the lesser, and the person assaulted having died in the interim between the assault and the convening of the court and the finding of the indictment, the sureties cannot escape liability for failure to produce Harper for the reason that they signed a bond conditioned that he should appear to answer the charge of assault to kill, and after-wards he was indicted for murder. Smith v. State, 38 South. 335; 5 Cent. Dig. 213-275; 5 Cyc. 119.
    Surely the judgment appealed from was warranted under Code 1906,. §§ 14-66, 1467.
   Mates, J.,

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court, making final a judgment nisi, formerly taken on an alleged forfeiture on an appearance bond executed by Harper. The facts ■are as follows: The record here shows that on the 11th day of April, 1905, an affidavit was made against one James Harper before a justice of the peace in district No. 4 of Claiborne county, charging him with an assault on one John Haywood with an ax, with intent to hill and murder. The record of the justice is made a part of the state’s evidence in the trial of this case, and shows only the above facts. It contains no judgment showing that the justice ever had any hearing under this charge and required the accused to enter into any bond. The state next offered proof to show that on the 12th day of April following, the sheriff of the county, and not the justice, took and approved a bond, executed by Harper, with James F. McOaleb and Undine F. McOaleb as sureties; the bond being offered in evidence and being for the sum of $1,000, payable to the state, containing the condition that it is given to secure the appearance of Harper at the next term of the circuit court to answer the state of Mississippi on a charge of assault with intent to kill.

It will be noted that nowhere in the bond is it specified that it was given in pursuance of any judgment of the .justice requiring same to be given, nor does the bond state on whom the assault was committed. The record does not show anywhere the authority of the sheriff for holding the prisoner, or by virtue of which he was authorized to take the bond. It does not appear that the sheriff had any mittimus from the justice. Of course, the absence of these things in no way affects the validity of the bond; but, if they were in the record, they might serve to identify the bond given with the offense which Harper was subsequently indicted for, thus showing that the bond was intended to secure the appearance of Harper for some offense in connection with John Haywood, though the charge at the time the bond was given for a much lighter offense than that for which he was subsequently indicted. In this condition of affairs, and on the 19th day of June following, the grand jury indicted Harper for murdering one John Haywood. Now, it will be seen that the assault charged in the affidavit in the justice court is charged to have been committed on John Haywood, and the indictment subsequently returned charges the murder ■of tbe same party; but there is not a thing to connect the bond taken by the sheriff for the appearance of Iiarper at the next term of the court to answer the state of Mississippi on a charge ■of assault with intent with either one of these charges, either as a matter of oral or record .proof. In other words, the bond .given is in no way identified with the offense charged. If the assault with intent charged at the time the bond was taken resulted in murder not foreseen at the time, of course, the bond remains good to secure the appearance of the party; but it must •be shown that the forfeiture taken on the bond was for the default in appearance of the party under the terms of the bond for the offense charged at the time of his release, or for some graver offense resulting from the same act, and not for a wholly different offense. All the proof offered in this case is that which we have quoted; no proof being offered by the state to show, as a matter of fact, that the bond taken was for the identical offense charged in the affidavit, or was the result of the act under which the charge was made.

At the June term, 1905, the defendant and his bondsmen wrere called, and, the defendant failing to appear, a forfeiture was taken on his bond, and a scire facias issued. The scire facias recited that “Whereas, James Harper, principal, and -James H and H. IT. McOaleb, sureties, entered into bond before the sheriff on the 12th day of April, agreeing to pay the state of Mississippi $1,000; unless Harper, the principal, should appear at the June term, 1905, of the circuit court, and remain from ■day to day and term to term, until discharged by law, to answer the charge of assault with intent to kill; and, whereas, on the 22d day of June, 1905, at the June term of court, Harper, having been called, came not, but made default, and the sureties, having been duly called to come into court and bring the body of Harper to answer the charge, came not, but also made default: It is thereupon considered by the court that the state have and recover from Harper and his sureties the "amount of bond,” etc. After forfeiture was taken, and the parties duly summoned into court by tbe scire facias, they filed pleas in which they set up the following, viz.: First, a plea of nul tiel record, alleging that the judgment nisi was null and void, because there was no record in the court on which to base the judgment; second, there is a fatal variance between the scire facias and the judgment nisi, in that the judgment recites no bond named in the scire facias; and, third, that there is a fatal variance between the scire facias and the bond given, because the tenor of the bond differs from the recitals .in the scire facias. All these pleas were replied to by the district attorney, and the issue thus joined resulted in a judgment in favor of the state for the sum of $1,000 against the principal and sureties.

The question in this case is not as to whether this was a valid bond. If this bond had the effect of releasing Harper from custody on any charge known to the law, then its validity is placed beyond question by Code 1906, § 1466, which provides that: “All bonds, recognizances, or acknowledgments of indebtedness, conditioned for the appearance of any party before any court officer, in any state case or criminal proceeding, which shall have the effect to free such party from jail or legal custody of any sort, shall be valid and bind the party and his sureties, according to the condition of such bond, recognizance, or acknowledgment, whether it was taken by the proper officer or under circumstances authorized by law or not, or whether the officer’s return identify it or not.”

' The validity of the bond is one thing, and its identity, when placed in suit for an alleged breach, with the crime charged against a principal in default of appearance, is another thing. Before the conditions of liability under the bond attach, the failure of the principal to appear in accordance with its terms must be a failure on the principal’s part to appear for trial on the identical offense he stood charged with, and for which he was held in custody when the bond released him, or for some lesser or graver crime resulting from and growing out of the same criminal act, either not known at the time or not charged in the affidavit or indictment. Tims, i’f one be charged with grand larceny, and execute a bond, and obtain a release from custody on that bond, if he be not subsequently indicted for that crime, but for counterfeiting or forgery, the last-named crimes being not connected with and independent of the crime charged for which the bond was given, a forfeiture cannot be taken on the bond for the failure to appear and answer the original charge, when called on the charge of forgery or counterfeiting.

There is no question as to the validity of this bond. If there has been a failure of the party to appear, the bond is just as good today as it was the day it was taken. Still it was necessary for the state to offer some kind of proof, either oral or record, to connect the bond on which forfeiture was taken with the offense for which the party was subsequently indicted, since there was nothing in the face of the bond or in the record which could possibly connect it in any way. 1

Reversed and remanded.

Whiteield,. C. J.,

delivered the following dissenting opinion:

One James Harper was arrested and carried before a magistrate court, and put under a bond to appear before the circuit court to answer the charge of “assault to kill,” as it is expressed. In the meanwhile, before the grand jury convened, the assaulted person died, and the grand jury, of course, returned an indictment for murder against Harper. The bond in this case was approved April 12, 1905, by O'. S. Magee, sheriff, and Harper, of course, released; the bond being returned into court. The affidavit had been made before B. W. Smith, justice of the peace, on April 11, 1905. It will thus be seen that the bond was executed and approved, and the prisoner released, the day after the affidavit was made against the prisoner.

There is no pretense in the record that this bond was not given to secure his release because of the offense charged against him in this same transaction wherein Haywood was killed. There is nothing in the record to suggest any doubt whatever that tbis bond was given befoTe tbe justice of tbe peace to answer to a charge of wbat is called an “assault to kill,” and no suggestion tbat be bad made an assault upon any other person. Tbe case of Smith v. State, 38 South. 335, is directly in point, and squarely decisive of tbis case. In tbat case one Smith executed a bond before a justice of tbe peace; tbe conditions being to appear at tbe next term of circuit court to answer tbe charge of robbery. At tbe next term of tbe circuit court be was indicted for grand larceny. He made default, and a judgment nisi was rendered against him and bis sureties; the judgment nisi reciting tbat be bad given a bond to appear and answer tbe charge of grand larceny. At tbe next term of the court tbe sureties on bis bond appeared and set up tbe defense tbat tbe bond which they bad signed did not obligate Smith to appear and answer an indictment for grand larceny; tbat consequently tbe bond recited in tbe judgment nisi was not tbe same identical bond which they bad executed, as shown by tbe judgment nisi itself. Tbis court said: “Sections 1394, 1395, Ann. Code 1892 (same provision in tbe C'ode of 1906), were made for just such cases as these two cases. * * * "Under these two sections of tbe Code, tbe judgment of tbe court below was correct, and is affirmed.”

I cannot see, for the life of me, wbat more there is in tbis case. The statute was made to cut off all such technical defenses, whenever tbe one thing appeared, to wit, that tbe bond, however informal, bad the effect of securing tbe release of tbe prisoner. It is perfectly manifest, from tbis record, tbat it-did secure tbe release of this man, Harper, and tbat it was given to secure bis appearance to answer for an offense growing out of tbe very transaction in which Haywood was killed. It is very wpll to recur to tbis statute, and set it out in full. Wbat is its language ?

“1394. All bonds, recognizances, or acknowledgments of indebtedness, conditioned for tbe appearance of any party before and court or officer, in any state case or criminal proceeding, which shall hare the effect to free such party from jail or legal ■custody of any sort; shall be valid and bind the party and his sureties, according to the condition of such bond, recognizance, ■or acknowledgment, whether it were taken by the proper officer or under circumstances authorized by law or not, or whether “the officer’s return identify it or not.
“1395. All bonds and recognizances taken in criminal cases, whether they describe the offense actually committed or not, ■shall have the effect to hold the party bound thereby to answer to such offense as he may have actually committed, and shall be valid for that purpose, until he be discharged by the court.”  