mation, in lieu of indictment, the proper preliminary examination is essential to the validity of the information.27 Proceedings before a magistrate are presumed to have been regular.28 The accused may waive any irregularity in the examination.29 In some states if the evidence shows that the magistrate has complete jurisdiction over the offence concurrent with the higher court he may in his discretion either bind over the prisoner or enter a conviction.30 other states the accused may if he wishes demand the full trial.31

In

§ 887. Bail.-An arrested person in many cases may obtain his liberty temporarily by giving bail, that is, by entering into a recognizance upon his own part and that of others, that he will appear for trial or further examination or forfeit a certain amount of money. Theoretically the arrested person is delivered to the surety who becomes entitled to his custody, and becomes responsible for his appearance at the time and place agreed. The power to admit to bail is judicial and not ministerial and may not be delegated.32 The magistrate may become liable criminally for wrongfully refusing bail or for wrongfully allowing it.

§ 888. Right to bail.-In most of our states constitutional or statutory provisions give the accused an absolute right to give bail where the punishment is not death, and even in those cases unless the presumption and evidence against the

27 State v. Wise, 83 Iowa 596, 50 N. W. 59.

28 Boynton v. State, 77 Ala. 29. 29 Cunningham v. State, 116 Ind. 433, 17 N. E. 904; State v. Woods, 49 Kans. 237, 30 Pac. 520.

30 Commonwealth v. Sullivan, 156 Mass. 487, 31 N. E. 647. 31 Commonwealth v. Harris, 8 Gray (Mass.) 470. 32 State

51.

v. Winninger, 81 Ind.

accused are strong.33 The right to admit to bail at common law was discretionary with the magistrate, and bail was usually denied in cases of felony. The amount of bail required depends upon the circumstances of the case, and should be only such as is reasonably sufficient to assure the appearance of the accused.34 Even by this rule, in cases where the punishment is only by a fine, the amount of bail should exceed the maximum penalty.35 The United States Constitution forbids the taking of excessive bail. The sufficiency of the sureties is in the discretion of the magistrate.36 In most states they must answer by oath or affidavit as to their financial responsibility. At common law, infants, married women, persons convicted of infamous crimes and insane persons were incompetent to become bail.38 Now the disabilities of married women have been removed generally by statute, and unless, expressly precluded by statute, any person capable of contracting may become bail. An infant may be bound as principal by a bail bond or recognizance.39

Where an accused person has been improperly denied bail, his remedy is by writ of habeas corpus.10

38 Ex parte McAnally, 53 Ala. 495, 25 Am. Rep. 646; Commonwealth v. Keeper of Prison, 2 Ashm. (Pa.) 227; Ex parte Weinberg (Cal.), 171 Pac. 937; Ex parte Haley (Tex. Cr.), 204 S. W. 330; Ex parte Holden (Okla. Cr.), 171 Pac. 925; Ex parte Nagel (Nev.), 167 Pac. 689; People v. Mott, 162 N. Y. S. 272, 97 Misc. 86.

34 State v. Hopson, 10 La. Ann. 550; Commonwealth v. Rutherford, 5 Rand. (Va.) 646; Ex parte Glass (W. Va.), 93 S. E. 1036; Ex parte Bowman (Tex. Cr.), 204 S. W. 329.

35 State v. Martinez, 11 La. Ann. 23.

36 2 Hale P. C. 125.

37 People v. Vermilyea, 7 Cow. (N. Y.) 108.

38 Bennet v. Watson, 3 Maule & S. 1.

39 McCall v. Parker, 13 Metc. (Mass.) 372, 46 Am. Dec. 735; Patchin v. Cromach, 13 Vt. 330; Bish. Cont., § 148.

40 Farrel v. Hawley, 78 Conn. 150, 61 Atl. 502, 70 L. R. A. 686, 112 Am. St. 98; Evans v. Foster, 1 N. H. 374.

§ 889. Forms and requisites of bail.-The common form of bail is either by bond or recognizance, obliging the principal and sureties to pay to the state a sum of money should the accused fail to appear at the time and place specified, and must be executed in the manner prescribed by law in order to be valid. By statute a deposit of money may be given in lieu of either.41 A bail bond is a contract under seal between the accused and his sureties on one part, and the state on the other, and must be signed and delivered. 42 A recognizance is a contract of record containing a similar obligation, and it is not essential that it be signed or sealed, unless statute requires.48 The recognizance must be acknowledged before the magistrate, who certifies to the acknowledgment, and files the instrument for record. Often, however, the magistrate merely repeats to the recognizors the obligation into which they are to enter, and the condition attached, and asks them if they are content, makes a memorandum of the proceedings, and subsequently draws up the recognizance in full and certifies it to the court.45

Either a bail bond or a recognizance "must contain and express in the body of it, the material parts of the obligation and condition."46 It should state the offense accurately and with reasonable certainty,47 but need not state all the circumstances or facts.48 If an indictable offense is not stat

41 People v. Laidlaw, 102 N. Y. 588, 7 N. E. 910.

42 Clark on Cont. 73.

43 Slaten v. People, 21 I11. 28; State v. Weatherwax, 12 Kans. 463; Commonwealth v. Mason, 3 A. K. Marsh (Ky.) 456.

44 Bridge v. Ford, 4 Mass. 641; People v. Kane, 4 Denio (N. Y.) 530.

45 Commonwealth v. Emery, 2 Bin (Pa.) 431; State v. Smoot (W. Va.), 95 S. E. 526.

46 State v. Crippen, 1 Ohio St. 399; Buzan v. State (Tex. Civ. App.), 127 S. W. 1030.

47 Nicholson v. State, 2 Ga. 363. 48 Patterson v. State, 12 Ind. 86.

ed, the recognizance is void.49 The time and place at which the accused is to appear must be manifest,50 and the court should be described, unless fixed by statute.51

§ 890. Release of sureties.-The sureties occupy the position of private jailers of their principal, may take him into custody at any time,52 may use reasonable force for this purpose,53 and may even upon occasion break doors to take him.54 Their obligation is released when they produce the principal in court and surrender him, or surrender him to the sheriff by order of the court,55 or when because of an act of God, an act of the state, or of law, it becomes impossible to produce him. So the death of the accused before the time fixed for his appearance releases the sureties,56 or a great degree of sickness,57 or a change in the law preventing performance,58 or a material change in the contract of recognizance by the state, as an agreement of the state with the accused to postpone his trial without consent of the sureties.59 Imprisonment by the state will usually excuse the sureties, or surrender as a fugitive from justice, but not arrest in another state where the sureties have voluntarily permitted him to go. Where the indictment is for a

60

62

49 Badger v. State, 5 Ala. 21; Dailey v. State, 4 Tex. 417.

50 State v. Allen, 33 Ala. 422; Mooney v. People, 81 Ill. 134.

51 People v. Carpenter, 7 Cal. 402.

52 Commonwealth V. Brickett, 8 Pick. (Mass.) 138; Nicolls v. Ingersoll, 7 Johns (N. Y.) 145.

53 Pease v. Burt, 3 Day (Conn.) 485; Commonwealth v. Brickett, 8 Pick. (Mass.) 138; Nicolls v. Ingersoll, 7 Johns. (N. Y.) 185.

54 Commonwealth v. Brickett, 8 Pick. (Mass.) 138; Nicolls v. Ingersoll, 7 Johns. (N. Y.) 185.

55 Bean v. Parker, 17 Mass. 591; Harp v. Osgood, 2 Hill (N. Y.)

56 Merritt v. Thompson, 1 Hilt. (N. Y.) 550.

57 People v. Tubbs, 37 N. Y. 586. 58 Ringeman v. State, 136 Ala. 131, 34 So. 351; Bish. Cont., § 594.

59 Reese V. United States, 9 Wall. (U. S.) 13, 19 L. ed. 541; Vincent v. People, 25 Ill. 500.

60 Buffington v. Smith, 58 Ga. 341; State v. Orsler, 48 Iowa 343. 61 State V. Allen, 2 Humph. (Tenn.) 258.

62 Yarbrough v. Commonwealth, 89 Ky. 151, 12 S. W. 143, 25 Am. St. 524; Devine v. State, 5 Sneed (Tenn.) 623.

misdemeanor, usually the accused may appear and plead by attorney, and be tried in his absence, and his bond will not be forfeited.63

§ 891. Forfeiture of bail.-The sureties become bound on their obligation, when the condition of the bond or recognizance is broken. Thus, where the principal fails to appear at the time and place agreed on, the sureties then become liable for the amount of the penalty." 64 But the court may remit the forfeiture, upon good cause shown,65 and in many states the governor has the power to remit the forfeiture of a bail bond or recognizance.66 The mere fact of appearance does not discharge the sureties, the principal must be taken into custody by the proper officer,67 but if he escapes after having been taken into custody, the sureties are no longer liable.68 The forfeiture of bail does not affect the right of the state afterwards to arrest and prosecute the accused.69 The mode of enforcing a forfeiture of bail is usually prescribed by statute, and may be by an action on the obligation in the name of the state, or in other cases, by making an entry of the forfeiture and judgment and scire facias thereon.

§ 892.

Commitment.-Where the offense is not bailable, or bail is refused, or is not offered, and there is sufficient evidence to require that the accused be held for trial, he must be committed to jail. To do this, a mittimus or warrant to the jailer is necessary, and to be valid this warrant must be in writing under the seal of the magistrate who

63 People v. Ebner, 23 Cal. 158; State v. Couneham, 57 Iowa 351, 10 N. W. 677. 64 Commonwealth v. Johnson, 3 Cush. (Mass.) 454.

65 Commonwealth

Mass. 65.

v. Dana, 14

66 Harbin v. State, 78 Iowa 263,

43 N. W. 210.

67 Commonwealth v. Coleman, 2 Met. (Ky.) 382.

68 Lyons V. State, 1 Blackf. (Ind.) 309.

69 State v. Rollins, 52 Ind. 168; State v. Meyers, 61 Mo. 414.