with at least two sureties, one of whom must be a freeholder of the county where the cause is pending; which recognizance shall be continuing, and the defendant shall not be required to renew it during the pendency of the proceedings, unless ordered to do so by the court, for cause shown. Such recognizance shall bind the real estate of all the recognizors in the county where the recognizance is entered into, from the time of their signing or entering into the same. At each term of the court after such recognizance is taken, the court shall inquire into the sufficiency of the sureties. The execution of a continuing recognizance is regarded as expressing a desire on the part of the prisoner to make such a recognizance, and no order of court is necessary for the execution of the same. Carmody v. State, 105 Ind. 546. 1783. (1714.) Form of continuing recognizance.-140. Such a recognizance may be substantially in the following form (the names, places and dates being changed to suit each particular case): We, Warren Prosser as principal, and Andrew F. Stewart and William H. Northcutt as sureties, owe the state of Indiana dollars, to be levied of our property. The condition of the above recognizance is, that if the said Warren Prosser shall personally be before the Clark Circuit Court on the first day of the next term thereof, and at each succeeding term of such court thereafter, to answer to a charge of rape, and abide the order of the court until said cause is determined, and not depart without leave, then this recognizance to be void; else, to remain in full force. Taken and approved, this day of 18 WARREN PROSSER. THOMAS DILLON, Sheriff. 1784. (1715.) Informal recognizance.-141. No recognizance, undertaking, or bond taken in any criminal proceeding shall be void for want of form or of substance, or for omission of any recital or condition, or because the same was entered into on Sunday; nor shall the principal or surety be discharged, but the principal and surety shall be bound by such recognizance, undertaking, or bond to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in such recognizance, undertaking, or bond. And no action upon such recognizance, undertaking, or bond shall be defeated for any want of form or substance, or for the omission of any recital or condition, or because the same was entered into on Sunday, or for the neglect of the clerk to indorse or record it, but the recog nizors shall be bound thereby, to the full extent specified therein. A recognizance may be recorded after execution has been awarded. Arrests may be made and bail taken on Sunday. State v. Douglass, 69 Ind. 544. A recognizance is not void because the description of the crime is general and indefinite. Adams v. State, 48 Ind. 212; State v. Hamer, 2 Ind. 371. Irregularity in the proceedings before a justice will not invalidate a recognizance taken by him. Harris v. State, ex rel., 54 Ind. 2. If the wrong obligee is inserted in the recognizance it will not render the same void. State v. Soudriette, 105 Ind. 306. If the recognizance is to answer any charge that may be made against the principal, when in fact he is under indictment and is discharged on giving the recognizance, such informality will not affect the validity of the recognizance. Bernhamer v. State, 123 Ind. 577. 1785. (1716.) Bail in murder.-142. When any person is indicted or held upon information for murder, the court in which the indictment is found or information is pending, upon motion (or in vacation. the judge of the circuit or criminal court, upon application by writ of habeas corpus), may admit the defendant to bail, when it appears, upon examination, that he is entitled to be let to bail. See section 1135 and notes. 1786. (1717). Surrender of principal.-143. When a bail desires to surrender his principal, he may procure a copy of the recognizance from the clerk, by virtue of which the bail, or any person authorized by him, may take the principal in any county within the state. This section is constitutional. State v. Rowe, 103 Ind. 118. 1787. (1718.) Surrender before judgment.-144. The bail, at any time before final judgment against him upon a forfeited recognizance, may surrender his principal in open court or to the sheriff, and, upon payment of such costs as the court may adjudge to be paid by him, may thereupon be discharged from any further liability upon the recognizance. This section is constitutional. State v. Rowe, 103 Ind. 118. At any time after forfeiture and before final judgment the bail may surrender the principal and be discharged upon payment of costs. Miller v. State, 8 Blkf. 77; Lorance v. State, 1 Ind. 359; State v. Rollins, 52 Ind. 168; State v. Rowe, 103 Ind. 118. When a person has been recognized by a justice to appear in the circuit court, the surrender must be made to such court, or the sheriff, and not to the justice. Stegars v. State, 2 Blkf. 104. If a recognizance is forfeited before a justice and certified to the circuit court, the surrender may be made to such court. Miller v. State, 8 Blkf. 77. If the principal is rearrested after forfeiture on process and convicted, the sureties are not thereby released. State v. Warwick, 3 App. 508. 1788. (1719.) Form of surrender.-145. The bail must deliver a certified copy of the recognizance to the sheriff with the principal; and the sheriff must accept the surrender of the principal, and acknowledge it in writing. It is immaterial how the principal is produced in court by the bail if he is produced and surrendered and the costs paid. State v. Rollins, 52 Ind. 168. 1789. (1720.) May give other bail.-146. Any defendant, so surrendered, may give other bail, or remain in custody until discharged by due course of law. 1790. (1721.) Forfeiture.-147. If, without sufficient excuse, the defendant neglect to appear for trial or judgment, or upon any other occasion when his presence in court may be lawfully required according to the condition of his recognizance, the court must direct the fact to be entered upon its minutes, and the recognizance of bail or money deposited as bail, as the case may be, is thereupon forfeited. Absence of the principal in the army is no excuse for his not appearing at the trial. Winninger v. State, 23 Ind. 228. Threats and fear of personal violence will not excuse the principal for non-appearance in obedience to the recognizance. Fleenor v. State, 58 Ind. 166. If the principal fails to comply with the judgment a forfeiture may be taken. State v. Whitson, 8 Blkf. 178; Campbell v. State, 18 Ind. 375. A forfeiture may be taken although no indictment was returned against the principal. Fleece v. State, 25 Ind. 384. If the bond requires an appearance on the first day of the term, a forfeiture may be taken on any subsequent day of such term. Rubush v. State, 112 Ind. 107. The forfeiture must be taken at the same term the defendant was required to appear. Kiser v. State, 13 Ind. 80; McGuire v. State, 124 Ind. 536. The same rule applies when the bond is a continuing one. Ind. 536. McGuire v. State, 124 If a defendant before a justice on being required to give bond for his appearance in the circuit court, or before another justice on change of venue, fails to do so, his existing bond may be forfeited. State v. Thompson, 62 Ind. 367; Fowler v. State, 91 Ind. 507. An appeal can not be taken by the sureties from a judgment of forfeiture. McGuire v. State, 119 Ind. 499. Power can not be conferred on the courts by the legislature to remit forfeitures. Butler v. State, 97 Ind. 373. This section is not applicable to bonds executed in proceedings for bastardy. Clark v. State, ex rel., 125 Ind. 1. No liability attaches to the prosecuting attorney for failure to have a forfeiture taken. State, ex rel., v. Egbert, 123 Ind. 448. If money deposited as bail is forfeited, the docket fee of the prosecuting attorney may be paid therefrom, but the fees of other officers can not be so paid. State v. Barron, 74 Ind. 374. Forfeitures must be entered by the court, and the power can not be delegated to the clerk. State v. Thistlethwaite, 83 Ind. 317. 1791. (1722.) Suit on recognizance.-148. The prosecuting attorney shall, as soon as such fact of forfeiture is entered, proceed by action against the bail upon the recognizance. Such action shall be governed by the rules of civil pleading, so far as applicable. At any time after forfeiture, and at any time before suit upon the recognizance, the surety may pay the amount named in the bond to the clerk of the court, who shall give him a receipt therefor. Suits on forfeited recognizances should be in the name of the state without a relator. Hawkins v. State, 24 Ind. 288; Shane v. Francis, 30 Ind. 92. In actions on forfeited recognizances that are taken by officers or courts of inferior jurisdiction, the complaint must show authority to take the recognizance. Blackman v. State, 12 Ind. 556; Myers v. State, 19 Ind. 127; State v. Winninger, 81 Ind. 51; Hawkins v. State, 24 Ind. 288; State v. Gachenheimer, 30 Ind, 63; Hannum v. State, 38 Ind. 32; State v. Wenzel, 77 Ind. 428. Courts of general jurisdiction may take recognizances without regard to the legality of the arrest. State v. Wenzel, 77 Ind. 428. Copies of the bonds should be filed with the complaints in suits on forfeited recognizances. Votaw v. State, 12 Ind. 497; Kiser v. State, 13 Ind. 80. In an action on a forfeited recognizance it is necessary to allege that a forfeiture of the bond was entered of record. Urton v. State, 37 Ind. 339; Hannum v. State, 38 Ind. 32; State v. Thistlethwaite, 83 Ind. 317. It need not be alleged that the surety was called and required to bring in the body of the principal. Rubush v. State, 112 Ind. 107. A defective statement of the offense in the recognizance will be no defense to a suit thereon. State v. Gachenheimer, 30 Ind. 63; Adams v. State, 48 Ind. 212; Freidline v. State, 93 Ind. 366. The complaint should show that a charge was pending when the bond was taken. Griffin v. State, 48 Ind. 258. If the complaint and copy of the bond filed show a compliance with the statute it will be sufficient. Carmody v. State, 105 Ind. 546. It must appear by the proof that the bond was taken in pursuance of a law authorizing it. McGuire v. State, 124 Ind. 536. If the court orders a recognizance to be entered into, and it is executed without objection, the validity of the bond can not be questioned in a suit therein. Cunningham v. State, 116 Ind. 433. In a suit on a recognizance forfeited before a justice of the peace it need not be alleged that the certificate of the justice required by statute and the bond were filed with the clerk of the circuit court. Adams v. State, 48 Ind. 212; Fowler v. State, 91 Ind. 507; Patterson v. State, 12 Ind. 86. See Urton v. State, 37 Ind. 339. In an action on a bond forfeited before a justice the circuit court can not set aside the forfeiture. Day v. State, 125 Ind. 582. Death of the principal after forfeiture is a good defense on the bond, except as to costs. Woolfolk v. State, 10 Ind. 532. Immaterial alterations in the bond will be no defense to an action thereon, and defects are cured by statute. Harris v. State, 54 Ind. 2, State v. Soudriette, 105 Ind. 306; Bernhamer v. State, 123 Ind. 577; Rubush v. State, 112 Ind. 107. The venue in actions upon forfeited recognizances is the same as in actions on ordinary contracts. State v. Vanvalkenberg, 15 Ind. 185. If the prosecuting attorney delays for a year after forfeiture to bring suit, the attorney-general may sue on the bond, and he will have absolute control of the action. State v. Schloss, 92 Ind. 293. 1792. (1723.) Lien.-149. Judgments on such forfeited recognizance shall bind and be a lien upon all real estate of the principal and sureties within the county in which the judgment is rendered, from the date of the commencement of the action; and such judgment shall be executed without relief from valuation or appraisement laws; and the finding and judgment of the court shall specify the date of the lien of such judgment. See sections 618, 1234. 1793. (1724.) Judgment.-150. Any judgment upon a recognizance forfeited by the principal is collectible upon execution, although he is afterward arrested on the original charge, unless remitted by the court for cause shown. The constitution confers exclusive power on the governor to remit forfeitures, and courts can not be authorized to exercise such power. State, ex rel., v. Speck, 20 Ind. 211, and State v. Shideler, 51 Ind. 64, disapproved. Butler v. State, 97 Ind. 373. The statute giving sureties the right to surrender the principal and be discharged before final judgment against the sureties, is constitutional. State v. Rowe, 103 Ind. 118. 1794. (1725.) Subrogation.-151. Whenever any person has been compelled to pay to any prosecuting attorney, clerk of the court, or sheriff, under mere color of judicial proceedings in attachment or garnishment at the suit of the state, the amount of any forfeited recognizance, such person so paying shall, from the date of such payment, be subrogated, as against the recognizors in such recognizance, to all the rights of the state under such recognizance, and shall have a cause of action against such recognizors for the amount so paid, as if such recognizance, and all the rights of the state under the same, had been assigned by the state to the person or persons so paying, at the date of such payment. 1795. (1726.) Prosecutor, when a party.-152. Whenever any claim or claims to which any person is subrogated under the foregoing section shall be sought to be enforced by any action or legal proceedings, the proper prosecuting attorney shall be made a party to the action or proceedings, to answer as to the fact of such payment and to protect the interests of the state, in such action or proceedings: Provided, That nothing in this act or the preceding section contained shall, in any event, create any liability or authorize judgment against the state, or render the state or such attorney liable for any costs in such action or proceedings. 1796. (1727.) Return of process.-153. The sheriff must return every process issued to him, with his doings fully indorsed thereon; and every process, judgment, and commitment of the circuit and criminal courts must be executed by the sheriff. SEC. 1797. Style of prosecution. 1798. Forms and rules. 1799. First pleading. ARTICLE 10.-PLEADINGS. 1800. Indictment or information. 1804. Amendments. 1805. Construction. 1806. Charging the offense. 1810. Private statute, how pleaded. 1812. Name. 1813. Separate counts. 1814. Joinder of counts. 1815. Murder in second degree and man slaughter. 1816. Perjury or subornation. SEC. 1817. Larceny-Joinder of counts. 1821. Misdescription of forged instrument. 1824. When sufficient. 1825. When not to be quashed. 1826. Copy to accused. 1827. Pleadings by accused. 1828. Motion to quash. 1829. Accused, when not discharged. 1830. Demand of trial or discharge. 1831. Arraignment 1832. Plea of not guilty. 1833. Plea of insanity. 1834. Acquittal for insanity. 1836. Plea of guilty. |