Laws

1 Such discretion is subject Post Date: Thu, 31 Jul 2008 22:09:26 +0000
2 Eeview on Appea L The action of the magistrate or court in grant- ing or refusing bail may be reviewed by the appellate court, 3 but in a riot, with an understanding that they would resist any one who op- posed them, even to the extent of kill- ing, and the accused was present, knowing such understanding, and par- ticipated in and encouraged the acts done, bail should be refuse d Co M v O'Donnell, 12 Pa Co Ct Rep 142; 2 Pitts b L J, N S 76 See Ex p Bonner(Ala, 1894), 1480 Rep 648 1 Ex p King, 86 Ala 620; Ex p Hock, 68 Ind 206; Ex p Suddath, 25 Tex App 426; Ex p Rice, 26 Tex App 343; Ex p Allen, 22 Tex App 201; Ex P Hanson, 27 Tex App 591; Ex p Bryant, 21 Tex App 639; Ex p Hay, 23 Tex App 585; Ex p Henson, 24 Tex App 305; Ex p Hope, 29 Tex App 189; Ex p Rankin, 30 Tex App Where there was evidence that the killing was done in self-defense, the accused had conducted himself well, and on trial the jury disagreed hel d proper to admit accused to bai L Ex p Goans, 99 Mo 193 Attempted ArreSt Where the ac- cused killed an officer who was at- tempting to arrest him, and the evi- dence showed he did not know of the official character of the officer at the time, and was not informed of his purpose in attempting to arrest him held, he was entitled to be baile d In re Johnson (Tex, 1889), 12 S W Rep 2 Kirk's Case, 5 Mo d 454; Harvey's Case, 10 Mo d 334; Co M v Semmes, ii Leigh ( Va) 696; Ex p Pattison, 56 Mis S 161; Street v State, 43 Mis S i; Ex p Bridewell, 57 Mis S 39; Les- ter v State, 33 Ga 192; People v Cole, 6 P Ark CR Rep ( N Y) 695 An application for bail, on the ground that the accused had a complication of diseases and required proper exercise, food, and medical treatment, was re- fused, on the ground that it was not shown that he could not receive proper care and treatment from the prison authoritie S Ex p Meador (Tex Cri M App, 1892), 20 S W Rep 371 Where it is shown that the continued confinement of a person accused of felony would endanger his life, he should be admitted to bai L Archer's Case, 6 Gratt ( Va) 705 Where a person in close confine- ment, charged with murder, is laboring under a present, painful, severe, and dangerous disease, which was caused by his imprisonment, and is likely to be so aggravated by it as to terminate fatally, he should be admitted to bai L Co M v Semmes, 11 Leigh ( Va) 696 Opinion of Physicia N Where it is shown that a person in confinement, accused of crime, is suffering from a disease which may ultimately be dangerous if he be kept confined, he should be admitted to bai L The opinion of a skilful physician that such confinement must be injurious, and may be fatal, is sufficient evidence to warrant taking bail; and it need not be shown that the danger from con- finement is immediate or certai N U S v Jones, 3 Wash (U S) 224 Hereditary Diseas e To be admitted to bail on account of sickness the accused must show that the disease is caused or greatly aggravated by the confinement; the existence of heredi- tary disease is not sufficient ground therefoRLester v State, 33 Ga 192; Moore v McMahon, 20 Hun ( N Y) 44; Matter of Steinert, 29 Hun ( N Y) 301; Ex p Pattison, 56 Mis S 161; Rex v Wyndham, i Str A 2 Where, on application to admit one accused of crime to bail, it was shown that he had a constitutional tendency to insanity, and that in the opinion of a physician close confinement in jail would develop it and endanger his life and health held, such evidence did not warrant his being bailed, it not being shown what length of confine- ment would be dangerous, or that he could not be confined in some other place without danger to his healt H Thomas v State, 40 Tex 6 3 People v Cunningham, 3 P Ark CR Rep ( N Y) 531 ; Ex p Croom, 19 Ala 5 Airount of Bail Fixin g The amount of bail required should be such as will be most likely to secure the appearance of the accused for trial, and in determining such amount it has been held proper to consider the nature of the crime charged and its punishment, the character and reputation of the accused, and his financial conditio N 2 Excessiv e The Constitution of the United States and those of all the states but Illinois provide that excessive bail shall not be re- quire d 3 What is a reasonable amount of bail is a matter resting 561; Moore v State, 36 Mis S 137; Ex p Bridewell, 57 Mis S 39; Ex p Wray, 30 Mis S 673; Lumm v State, 3 Ind 293 See also Ex p Kittrell, 20 Ark 499; Ex p Hamilton, 65 Mis S 147; Ex p Pattison, 56 Mis S 161; Ex p Walton, 79 Ind 600; Ex p Bare, 76 Ind 378; Ex p Hock, 68 Ind 206 Contra, Yarbrough v State, 2 Tex 519 The appellate court does not usually deem it proper to discuss the evidence in the case upon which it founds its judgment. Ex p Jones, 31 Tex Cri M Rep' 422; Beall v State, 39 Mis S 715 See also Ex p Walton, 79 Ind 600; Ex p Bare, 76 Ind 378; Ex p Hock, 68 Ind 206 1 Lester v State, 33 Ga 192; Street v State, 43 Miss, i; Ex p Jones, 31 Tex Cri M Rep 422; Ex p Nettles, 58 Ala 268; Ex p Allen, 55 Ala 258 Ordinarily there is a prima-facie presumption that the action of the judge below was corre Ct Ex p Bride- well, 57 Mis S 39; Street v State, 43 Mis S I But not alway S Ex p Hamil- ton, 65 Mis S 147 See also Ex p Sutherlin, 56 Ind 595; Ex p Heffren, 27 Ind 87 Where on application for bail the evidence did not show any grounds for charging the accused with the offense, but bail was refused held, on ap- peal, that this was error, and that bail should have been granted or the mat- ter postponed for the hearing of fur- ther evidenc e Ex p Floyd, 60 Mis S Where, on appeal from the refusal to allow bail, it was determined that bail should have been allowed held, that the prosecution could not introduce further evidence except on the ques- tion of the amount of bai L Ex p Hammock, 78 Ala 414 2 People v Cunningham, 3 Park CR Rep ( N Y) 520; Ex p Banks, 28 Ala 89; U S v Lawrence, 4 Cranch ( C C) 518; Ex p Duncan, 54 Ca L 75; Ex p Hutchings, n Tex App 28; Moore v State, 36 Mis S 137 Eight thousand dollars is not ex- cessive bail to require of one charged with forgery, where the punishment fixed by law for such crime is from one to fourteen year S In re Williams, 82Cal183 It is proper for the court to take into consideration the fact that the accused is a man of fortun e Ex p Banks, 28 Ala 89 It is proper to consider the value of property the accused is alleged to have received in the commission of the offense charged, and to require bail in a sum at least equal theret O Ex p Duncan, 53Cal410 A recognizance need not show that the amount of bail was fixed by the court and indorsed on the writ Vancil v People, 16 111 120 By Cler K The clerk of the court has power to determine the amount of bail in case the court has not de- termined the amount thereof and no judge can be found, after reasonable effort to find on e State v Schweiter, 27 Ka N 499 By Constabl e A constable has no power to determine the amount of bail, although the court has failed to do so and no judge can be found to whom to appl Y State v Winninger, 81 Ind 51 Fixed in Advanc e It is proper to make an order in advance fixing the amount of bail in a particular class of cases at a uniform sum, subject to modification where its impropriety or injustice is show N Carmody v State, 105 Ind 547 3 Stimson's Statute Law, 123 Federal Constitutio N The provision of the United States Constitution that excessive bail shall not be re- in the sound discretion of the officer having authority to deter- mine it. 1 Such discretion is subject to review, but will not be reversed unless an abuse of it is show N 2 Reductio N In a proper case a reduction of bail may be obtained by a simple application to the court or by habeas-corpus pro- ceeding S 3 quired does not apply to or control the court or officers of the several states on applications for bail; but the ques- tion is to be determined by the con- stitutions of the states, most of which have similar provision S Barker ? / People, 3 Co W ( N Y) 686; Co M v Hitchings, 5 Gray (Mas S) 482; Barron v Baltimore, 7 Pet (U S) 243; James v Co M, 12 S R(Pa) 221 Excessiv e To require for the ac- cused a larger sum as bail than from his circumstances he can be reason- ably expected to give, is substantially a denial of bail and a violation of the constitutional guaranty against ex- cessive bai L U S v Brawner, 7 Fed Rep 86; U S v Lawrence, 4 Cranch ( C C) 518 Mere proof of inability to furnish the amount required does not show it to be excessiv e Ex p Duncan, 54 Ca L 75 1 Ex p Bryant, 34 Ala 270; Ex p Ryan, 44Cal555; Ex p Taylor, 5 Co W ( N Y) 39; People v Dixon, 4 P Ark CR Rep ( N Y) 651; State v Ward, 2 Hawks (N Car) 443; State v Hill, 3 Ire d (N Car) 398; In re Perry, 19 Wi S 676 Ten thousand dollars was held ex- cessive for a person convicted of libe L In re Chandler, 45 La An N 696 Not Excessiv e Where the accused is in custody, charged with the em- bezzlement of property amounting to between seventy and eighty thousand dollars, bail in the sum of twenty- five thousand dollars is not excessiv e Ex p Snow, i RI 360 Upon charges of forgery and of the larceny of property of the value of five hundred dollars, bail in the sum of two thousand dollars was held not to be excessiv e Evans v Foster, I N H 374- Seventy thousand dollars was not excessive for one charged with embez- zling that amount, and who had once fled after being baile d In re Scott, 38 Neb 502 Fifteen thousand dollars was held not excessive bail for one accused of attempt to kil L Ex p Ryan, 44Cal555- Ten thousand dollars was held rea- sonable for one indicted for murdeRMcConnell v State, 13 Tex App 390 One hundred and twelve thousand dollars was held reasonable for ten distinct felonies, where that sum was alleged to have been take N Ex p Duncan, 53Cal410 More than Ordere d Where an order of court had fixed the amount of bail, and a sheriff demanded and received bail from the accused in a larger amount than required by the order, the recognizance so given was held voi d Waugh v People, 17 111 561 Less than Statute Require d Where a recognizance was taken in'a sum less than that required by statute held, that it was voi d State v McCown, 24 W Va 625 Judge not Liabl e A judicial officer is not liable to an action for demand- ing excessive bai L But in the case of Evans v Foster, I N H 374, it was determined that the bail demanded was not excessiv e 2 McConnell v State, 13 Tex App 390- The exercise of discretion of the trial court in fixing the amount of bail will not be reviewed by the appellate court unless it clearly appears that the amount fixed by the trial court is en- tirely disproportionate to the offense charge d In re Williams, 82Cal183 3 Beldens v Cromelines, i Wen d ( N Y) 107; Bunting v Brown, 13 John S ( N Y)425; Evans v Foster, i N H 374 Bail CommissioneRAfter the amount of bail has been fixed by a judge hav- ing authority so to do, it cannot be changed by a bail commissioneRIn re Bail Com'rs, 85 Me 544 Contra, People v Robb, 98 Mich 397 Appellate Court.

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Simmons, 47 Fed Rep Post Date: Thu, 31 Jul 2008 21:57:38 +0000
Where, on appeal from conviction for manslaughter, the trial court has fixed the amount of bail on appeal, the appellate court has no power to reduce the amount thereof 6 Money as Bail Authority to Tak e In many jurisdictions the statutes authorize persons arrested and charged with crime to deposit money in lieu of giving bail ; but unless there is a statute authorizing it such a deposit cannot be taken as bail, 1 A Substitute for Recognizanc e Where money has been properly taken as bail, a person accused cannot be compelled to give a recognizance or bail bon d 2 Forfeitur e Money deposited as bail is treated as a recognizance, and the same proceedings must be taken to forfeit it as if it were a recognizance ; 3 and when so forfeited it is considered and treated as though it was money recovered in a suit on a recog- nizanc e 4 Title to Mone Y Money so deposited is considered as the prop- erty of the accused, and may be applied in payment of a fine imposed on him, although it was in fact deposited by and belonged to a third perso N 5 7 Qualifications of Bai L The number and qualification of the bail are generally regulated by statute in each jurisdictio N Two sureties of sufficient ability are usually required, 6 who should swear to their sufficiency, and they may be examined as to their qualification S T If the sureties offered are of sufficient pecuniary as excessiv e State v Gile, 6 Wash 623 Financial Conditio N In an applica- tion to reduce the amount at which bail has been fixed, the papers should show the financial condition of the accuse d Ex p Hutchings, n Tex App 28 Evidence that the accused is un- able to give the amount of bail re- quired does not necessarily show that the bail demanded is excessive, or warrant its reductio N Ex p Duncan, 54Cal77; People v Town, 4 111 19 Presumption of Guilt. On an applica- tion for the reduction of bail the ac- cused is presumed to be guilt Y Ex p t Duncan, 54Cal75 1 Butler -v Foster, 14 Ala 323; State v Lazarre, 12 La An N 166; Dean v Co M, I Bush (Ky) 20; Wash v State, 3 Cold W (Tenn)gi; Morrow v State, 6 Ka N 227; Smart v Cason, 50 111 195; Reinhard v Columbus, 49 Ohio St 257; U S v Faw, i Cranch ( C C)486 2 Wash v State, 3 Cold W (Tenn) 91; Morrow v State, 6 Ka N 222 3 State v Evans, 13 Mont 239 4 Rock Island County v Mercer County, 24 111 35; Morrow v State, 6 Ka N 222: Dean v Co M, i Bush(Ky) 20 5 People v Laidlaw, 102 N Y 588 Returning Mone Y Where money was deposited in lieu of bail by a per- son illegally arrested held, he could recover it bac K Reinhard v Colum- bus, 49 Ohio St 257 Where money is deposited as bail and forfeited, and the forfeiture is subse- quently vacated and discharged, the money may be returne d Arquette v Marshall County, 75 Iowa 191 Where money as bail was deposited by the person who acted as attorney for the accused, and it was afterwards returned to such attorney by the city held, that such payment to the attor- ney was justified, and the city was not liable to be accused therefoRJack- son v Rome, 78 Ga 343 6 Haw K p C, b K 2, C 15, 54 In case of felony four sureties should be require d Rex v Shaw, 6 d R154, 16 E C L 260 Where a magistrate takes a recog- nizance with only one surety it is valid, although a statute requires two or mor e State v Baker, 50 Me 45; State v Benton, 48 N H 551 7 People -v Vermilyea, 7 Co W ( N Y) 141; Stratton -v People, 20 Hun ( N Y) 288, 81 N Y 629 It is the duty of the magistrate to see that the sureties are responsible, and he may examine them on oath, ability, they cannot be rejected because of their character or political opinion S 1 8 Recognizance a, FORM AND VALIDITY (i) In Genera L The first requisite to the validity of a recognizance is that it shall be taken by a court or officer having legal authority to take it, and if such power does not exist in the court or officer taking it, the recognizance is voi d 8 No particular form of words and also call and examine witnesses on the subje Ct This is a judicial pro- ceeding, and false swearing therein is perjur Y Territory v Weller, 2 N Mex 470 Consent of Accused Necessar Y A per- son accused cannot be compelled to accept as bail persons whom he does not consent to have act as suc H He has a right to determine for himself to whom he will assume the obliga- tions imposed on a principal towards his bai L People v Davidson, 67 How Pr ( N Y Supreme Ct) 416 Sureties Indemnifie d Where the sureties have been indemnified by the accused and his friends, a recognizance given on appeal from a conviction of the accused is improper and should not be accepte d U S v. Simmons, 47 Fed Rep 575 Receiving Property to Qualif Y It is no objection to bail that property has been transferred to them by friends of the accused in order to enable them to qualif Y People v Ingersoll, 14 Abb Pr, N S ( N Y Supreme Ct)23 1 Reg v Badger, 4 QB 468, 45 E C L 468, 7 JuR216 2 Alabama Butler v Foster, 14 Ala 323; Gray v State, 43 Ala 41 Arkansa S Blevins v State, 31 Ark 53; Cooper v State, 23 Ark 278 Georgia Nicholson v State, 2 Ga 363 Illinoi S People v Maynard, 14 111 419; Solomon v Peopl e 15 111 291 Indiana State v Wenzel, 77 Ind 428; State v Winninger, 81 Ind 51 Iowa State v Cannon , 34 Iowa 325 ; Furgison v Stat e 4 Greene (Iowa) 302 Kansa S Morrow v State, 5 Ka N 563- KentucKy Chinn v Co M, 5 J J Marsh (Ky) 29; Wallenweber v Co M, 3 Bush (Ky) 68; Schneider v Co M, 3 Mete (Ky) 409; Tharp v Co M, 3 Mete (Ky) 411; Branham v Co M, 2 Bush (Ky) 3; Co M v Roberts, I Duv (Ky) 199; Co M v Fisher, 2 Duv (Ky) 3/6; Dugan v Co M, 6 Bush (Ky) 305; Harris v Simpson, 4 Litt (Ky) 165, 14 A M De C 101 Louisiana State v Hays, 4 La An N 59; State v Vion, 12 La An N 688; State v Jones, 3 La An N 10; State v Harper, 3 La An N 598 Maine State v Berry, 8 Me 179 Massachusett S Vose v Deane, 7 Mas S 280; Dow v Prescott, 12 Mas S 419; Co M v Otis, 16 Mas S 198; Co M v Canada, 13 Pic K (Mas S) 86; Co M v Loveridge, n Mas S 337 Michiga N Clink v Circuit Judge, 58 Mich 242; People v McKinney, 9 Mich 444 Mississipp I Jacquemine v State, 48 Mis S 280 Missour I State v Randolph, 26 Mo 213; State v Ferguson, 50 Mo 409; State v Watson, 54 Mo App 416; State v Nelson, 28 Mo 13 Nebraska Dickenson v State, 20 Neb 72 Ohio Powell v State, 15 Ohio 579; State v Clark, 15 Ohio 595 Orego N Williams v Shelby, 2 Ore- gon 144 Tennessee State v McCoy, 60 Tenn i N Texa S Cassaday v State, 4 Tex App 96; Keppler v State, 14 Tex App 173; Holmes v State, 44 Tex 631; State v Russell, 24 Tex 505 Ver Mont Phelps v Parks, 4 Vt 488 United State S U S v Case, 8 Blatchf (U S)250 A writing purporting to be a recog- nizance taken by a person not author- ized by law to take it or to admit to bail, although not technically a recog- nizance, is a contract between the sureties and the state, and is valid as suc H Dennard v State, 2 Ga 137 Where one justice had power to take a recognizance held, that the fact that it was taken by two justices did not invalidate it.

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2 The special before Post Date: Thu, 31 Jul 2008 21:38:45 +0000
Chase v Peo- ple, 2 Colo528 The validity of a recognizance does not depend on the fact that the court is necessary to render a recognizance valid, but it must contain the essential requisites of such an instrument. 1 A recognizance should state, in substance, all the proceedings which show the authority of the court or magistrate to take it. 2 The special before which the party is required to appear has jurisdiction of the crime charged against him, but upon the duty and power of the magistrate to examine into the matter and to admit the party to bai L State v Edney, 4 Dev B (N Car) 378 The Venue in the margin of the re- cognizance may be sufficient to indicate in what court it was take N State Treasurer v Bishop, 39 Vt 353 Illegal ArreSt If the accused is illegally arrested, a recognizance given to obtain his release is voi d Pauer v Simon, 6 Bush (Ky) 514; Blevins v State, 31 Ark 53; Brown v Way, 33 Ga 190 If the warrant, indictment, or proc- ess under which the accused is held is void, the recognizance given by him will be invali d Harrell v State, 22 Tex App 692; Cassaday z/ State, 4 Tex App 96; State v Swope, 72 Mo Varianc e A recognizance is valid although there is a variance between it and the warrant of arreSt State v, Rowe, 8 Rich ( S Car) 17 Grand Jury ImpropeRWhere the grand jury which found an indictment was improperly composed, and the in- dictment invalid, a recognizance given to appear and answer the indictment was held voi d Wells v State, 21 Tex App 594- Indictment Quashe d Where a re- cognizance is given to appear and an- swer an indictment, and the indictment is quashed, the recognizance is voi d State v Lockhart, 24 Ga 420 Irregularitie S The validity of a recognizance is not affected by any irregularities in the proceedings prior to the time when it was give N U S v Wallace, 46 Fed Rep 569; People v Brown, 59 Hun ( N Y) 618 A recognizance is not necessarily void merely because the proceedings under which it was taken were er- roneou S Co M v Haffey, 6 Pa St 343 Purpose Unauthorized .

Autor of the post: Undefined

it is valid Post Date: Thu, 31 Jul 2008 21:23:27 +0000
A recogni- zance taken for a purpose not author- ized by law is invalid and voi d Har- rington v Brown, 7 Pic K (Mas S) 232 Subsequent Event S If, at the time a justice of the peace admits an assailant to bail, the assailed party is still alive, and the justice, believing the offense not to amount to more than an assault and battery, admits the offender to bail, the reognizance is not void, al- though the assailed party may after- wards die of the wounds inflicted by the assailant. Adams v Governor, 22 Ga 417 Charge Preferred by Justic e In Texas, where a recognizance states that the charge was preferred by a justice, it is invali d Murphy v State, 17 Tex App 100 To Proper OfficeRThe recognizance must also be taken to the proper officer, treasurer of the state or county, etc, as the case may b e Treasurer v Mitchell, 23 Vt 131 1 Dean v State, 2 Smed M (Mis S) 200 Where no form is prescribed by stat- ute, any language is sufficient which shows that the officer took the recog- nizance for the purposes intende d Lawrence v People, 17 111 172 A recognizance may be good as such at common law, although it does not conform exactly to a state statut e Phelps v Parks, 4 Vt 488 A recognizance is not invalid be- cause it recites that the indictment was for larceny, when it was for larceny and burglary; nor because it does not state the term, day, and year when the indictment was found; nor because of discrepancy between its date and its approva L Mooney v People, 81 111 Under the Texas statute denning a recognizance, a recital in a recogni- zance that the principal binds himself, etc, and the " surety binds his heirs and legal representatives" without binding himself, is fatally defectiv e Grier v State, 29 Tex 95 2 State v Smith, 2 Me 62; Co M v Downey, 9 Mas S 520; Co M v Daggett, 16 Mas S 446; Nicholson v, State, 2 Ga 363 Ground S A recognizance should state the grounds on which it is taken, so that it may appear that the magis- trate who took it had jurisdiction and facts which give jurisdiction in the particular case need not be stated if the recognizance is conditioned for the doing of some act for which recognizance may properly be taken, and if the court or officer who takes it has authority to take recognizances in cases of that general descriptio N 1 (2) Condition and Penalt Y A recognizance must have a condi- tion and a penalty, and the material parts thereof should be clearly state d 2 The omission of a condition required by statute authority so to d O Co M v Downey, 9 Mas S 520; Co M v Daggett, 16 Mas S 447; State v Smith, 2 Me 62; Nicholson v State, 2 Ga 363; Good- win -v Governor, I Stew p (Ala) Contr A If the court or officer tak- ing a recognizance had jurisdiction to take it. it is valid, and the existence of jurisdiction, or the facts giving it, need not be stated in the recognizanc e State v Terrell, 29 Ka N 563; People v Dennis, 4 Mich 609 Description of Offens e Where a re- cognizance is taken by a court of limited jurisdiction, the offense with which the accused is charged should be so described therein that it will appear that the said court had power to admit to bai L Chase v People, 2 Colo528; People v Koeber, 7 Hill ( N Y) 39; State v Howley, 73 Me 552 1 State v Hamer, 2 Ind 371; Gal- lagher v People, 91 111 590; Gilder- sleeve v People, 10 Barb ( N Y) 35; People v Kane, 4 De N ( N Y) 530; Champlain v People, 2 N Y 82; U S v George, 3 Dil L (U S) 431; State v Edgerton, 12 RI 104; State v Grant, 10 Min N 39; People v Den- nis, 4 Mich 609; State v Williams, 17 Ark 371 Hence where a recognizance taken before a magistrate authorized to take bail in all cases is conditioned for the appearance of the accused to answer a charge of forgery, it is valid, although it does not state the proceedings by which the application was brought before the magistrat e People v Kane, 4 De N ( N Y) 530 Precisio N A recognizance is valid if it shows at what court the accused is bound to appear, and the description of the charge made is such that it ap- pears the magistrate has authority to take bail, although the language used is not concise or cleaRState v Hatch, 59 Me 410; State v Crowley, 60 Me 103 Variance from Statutory For M Al- though a statute prescribes the form of a recognizance, yet if the accused be released on an obligation volun- tarily given, and which is good as a common-law obligation, it will be held sufficient.

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Sullivan, 3 Yerg (Tenn)28i Post Date: Thu, 31 Jul 2008 21:10:56 +0000
State v Perry, 28 Min N 460; U S v Evans, i Cri M L Ma g ( N Y) 600 Probable Caus e In People v Koeber, 7 Hill ( N Y) 39, it was held that it should appear from a recognizance that there was probable cause for be- lieving the accused guilty of the of- fense charge d But this case was overruled in Champlain v People, 2 N Y 85; People v Kane, 4 De N ( N Y)539- Where a recognizance is given to secure the appearance of the accused for further examination, it need not state "that there is probable cause for holding the accused to bai L" Peo- ple v Freeman, 20 Mich 413 After Examinatio N It should appear that a recognizance was taken after the holding of an examination and the admission of the accused to bail, and this should appear from some memo- randum made by the magistrate, or some judgment entered; and if it does not so appear the recognizance is in- vali d Morgan v Co M, 12 Bush (Ky) 84 A recognizance entered into without an examination of the charge made against the accused is void unless such examination is waived, and the accused has a right to such exami- nation before a recognizance can be required, if he insists on such right. Champlain v People, 2 N Y 82 2 State v Crippen, i Ohio St 399 The Material Parts of the obligation and condition should appear in the recognizance, and the recognizance to appear before the court should bear as close an analogy as possible to that to appearbefore the examining magis- trat e Dillingham v U S, 2 Wash (U S) 422 A recognizance is invalid unless it renders it void; 1 but the addition of conditions not required do not vitiate it unless they make it more onerous than the law require S 2 (3) Appearance Condition Essentia L A recognizance must be conditioned for the appearance of the accused, or it is fatally defectiv e 3 Time and Plac e It must state a day or time for such appearance, or it is voi d 4 If the time stated for appearance is a time when no court is to be held, the recognizance is invali d 5 A recognizance contains all the essential parts of both the obligation and condition; nor can the lack of them be supplied by oral evidenc e A memorandum of a clerk on a loose sheet of paper, stating that a recognizance had been entered into by the parties, but not setting out all the essential parts thereof, is invalid as a recognizanc e Although a statute al- lowed a recognizance to be taken in open court and attested by the clerk without entry on the journal of the court, this was not intended to dis- pense with a writing setting out all essential parts of the recognizanc e State S Crippen, i Ohio St 399 1 State v McCown, 24 W Va 625; Alexander v Bates, 33 Ga 125 See Gallagher v People, 91 111 590; State v Benton, 48 N H 551 2 State v Cobb, 71 Me 198; State v Crawley, 60 Me 103; State v Wellman, 3 Ohio 14; People v Haw- kins, 5 How Pr ( N Y Supreme Ct) i; People v Millis, 5 Barb ( N Y) 511; State v Kurtz, 27 Ka N 223; State v Edgerton, 12 RI 104; Howie v State, i Ala 113; Williford v State, 17 Tex 653 Surplusag e A condition that a recognizance shall be valid only in case the accused is legally imprisoned cannot enlarge or restrict the opera- tion of a recognizance or vitiate it; and such a condition must be regarded as surplusag e State v Wellman, 3 Ohio 14 More Burdenso Me If conditions are inserted in a recognizance that are not authorized by statute, and which make it more burdensome, it is in- vali d Loyd v McTeer, 33 Ga 37; Turner v State, 14 Tex App 168 3 Carroll v State, 6 Tex App 463; Anonymous, 6 Mo d 231 A recognizance binding the accused to pay a sum of money absolutely, without any provision for his appear- ance, and not binding the sureties in any sum, is invali d Hand v State, 28 Tex App 28 4 State S Allen, 33 Ala 422; Henry v Co M, 4 Bush (Ky) 427; Co M v Ball, 6 Bush (Ky)2g4; People v Car- penter, 7Cal402; Brite v State, 24 Tex 219; State v Casey, 27 Tex in; State v Bradley, i Blackf (Ind) 83; Wheeler v State, 21 Ga 153; Sheets v People, 63 111 78; Mooney v Peo- ple, 81 111 134; State v Johnson, 13 Ohio 176; Gay v State, 7 Ka N 394 Day to Da Y A recognizance requir- ing the accused to appear from day to day for examination, and not depart the court without leave, is enough to bind him to remain in attendance dur- ing the whole examination, whether continued from day to day or ad- journed over to any time and place within the jurisdiction of the magis- trate to specif Y People v Wittels- berger, 39 Mich 259 5 Burnett v State, 18 Tex App 283; Thomas v State, 12 Tex App 417; Proseck v State, 38 Ohio St 606; State 7'. Sullivan, 3 Yerg (Tenn)28i; Butler v State, 12 Smed M (Mis S) 470; Co M v Bolton, i S R(Pa) 328; State Treasurer v Danforth, Brayt ( Vt) 140; U S v Keiver, 56 Fed Rep 422; People v Mack, i P Ark CR Rep ( N Y) 567 Change of Ti Me Where a recogni- zance requires the accused to appear at a term of court to be held at a time when no legal term of the court can be held, it is void; but where the time stated in the recognizance is that fixed by law for the holding of the court at the time the recognizance is given, a subsequent change by statute in the time of holding court does not render the recognizance void; the accused is bound to take notice of the change, and appear on the day to which it is change d Douglas v State, 26 Tex App 248 Where a recognizance is conditioned mast properly state the court or place at which the accused is required to appear, or it is voi d 1 If the time and place of appearance be stated with reasonable certainty, it is sufficient.

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20 S W Post Date: Thu, 31 Jul 2008 20:53:28 +0000
2 for the appearance of the accused on a day named, it is not invalidated by a change in the time of holding the court. Walker v State, 6 Ala 350 Continuanc e Where an indictment is found at the term at which a recogni- zance is returnable, it may be con- tinued or extended to a subsequent ter M Ellison v State, 8 A La 273 Impossible Dat e A recognizance conditioned for the appearance of the accused at the next term of court, A d 188, is void, the date specified being an impossible on e Wegner v State, 28 Tex App 419 Inserting a Wrong Year by Mistake as the date on which the accused is to appear, does not render a recogni- zance invali d People v Welch, 47 Ho W Pr ( N Y C P I) 420 Term to Ter M A recognizance con- ditioned for the appearance of the ac- cused from term to term and day to day is valid; the words day to day may be treated as surplusag e State v Glaevecke, 33 Tex 53 InstanTer A recognizance requir- ing the accused to appear " instanter " was held vali d Fentress v State, 16 Tex App 79 1 State v Rye, g Yerg (Tenn)386; Sherman v State, 4 Ka N 570; People v Mack, I P Ark CR Rep ( N Y)s67; Thomas v State, 13 Tex App 496; Pippin v State (Tex Cri M App, 1893). 20 S W Rep 979 But see Petty v People, 118 111 148; Milliken v State, 21 Ohio St 635; State v Johnson, 13 Ohio 176; People v Car- penter, 7Cal402 A recognizance should show on its face the court before which the ac- cused is bound to appeaRState v Rye, 9 Yerg (Tenn) 386 It need not name the court' in which the recogni- zance was take N State v Rye, 9 Yerg (Tenn) 386 Contra, Grigsby v State, 6 Yerg (Tenn) 354 Narae of County Omitte d Where a statute provided that a recognizance should require the accused to appear before the proper court, and that the name of the court and county should be a sufficient statement of the place of appearance held, that a recogni- zance stating the place of appearance as "the county court in and for the county of county, state of Texas, at the court-house thereof, in the city of W," was defective and invali d Hammond v State (Tex, 1886), 9 S W Rep 269 Court not Judg e A recognizance should be made returnable before the court.

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Nelson v State, 44 Ka Post Date: Thu, 31 Jul 2008 20:34:47 +0000
If returnable before a judge at chambers, the accused is not bound to appeaRCorlies v Waddell, i Barb ( N Y) 3 55 Ifame of Judg e A recognizance must state the name of the magistrate before whom the accused is required to appear; and where it omits to do so it is voi d Crowder v State, 7 Tex App 484 2 Reg v Hodgson, 7 Exc H 915; Mooney v People, 81 111 134; Allen v People, 29 111 App 555: State v Bradley, i Blackf (Ind)83; Dean v State, 2 Smed M (Mis S) 200; Kel- logg v State, 43 Mis S 57; Williamson v Hall, i Ohio St 190; State v W T ell- man, 3 Ohio 114; Clark v Petty, 29 Ohio St 452; Proseck v State, 38 Ohio St 606; Co M v Emery, 2 Bin N (Pa) 431; Pickett v State, 16 Tex App 648; Brite v State, 24 Tex 219 Next Criminal Court. A recogni- zance may be conditioned for the appearance of the accused at the next criminal court having cognizance of the offense charge d People v Mack, i P Ark CR Rep ( N Y) 567; Moore v State, 28 Ark 480; Turner v State, 14 Tex App 168; Crowder v State, 7 Tex App 484; Williamson v State, 12 Tex App 169; Nicholls v State, 5 N J L 539- Next Ter M A recognizance is valid although it requires the accused to appear "before the next term of the court" instead of "before the court at its next ter M" Brown v State, 28 Tex App 65 Before "the Judg e 1 ' A recognizance requiring the prisoner to appear be- fore "the judge of the" court to which the recognizance is returnable, is not thereby voi d Dean v State, 2 Smed M (Mis S) 200 Name of Count Y A recognizance is valid, although it does not in the body of it state the county in which the court is to be held at which accused is re- quired to appear, where it is headed Omissions and Addition S If properly conditioned for appearance a recognizance is not invalid for omitting the requirement to answer the charge or indictment ; * nor by the addition of pro- visions requiring the accused not to depart without leave, etc 3 (4) Offense Charge d A recognizance must set out or specify the offense charged and for which the accused is held to answer, or it is voi d 3 The offense must be described in such terms as with the name of the proper county, was filed in the clerk's office thereof, #nd the accused was arrested in that county; and if the accused fails to ap- pear it may be properly forfeited for such nonappearanc e Norton v State, 40 Ka N 670 Defect Cured by Statut e A recog- nizance reciting that the accused had entered into a sufficient recogni- zance to appear at the next regu- lar term of court and not depart with- out leave, is not invalid by reason of a further clause therein requiring the accused to appear before the judge of the same court to answer the in- junction against him, the latter clause being regarded as a mere defect of form which the statute provides shall not vitiate it. Nelson v State, 44 Ka N Court-house Presume d If a recogni- zance is silent as to the place where the court at which the accused is to appear is held, the court house of the county will be presumed to be intend- e d People v Derby, i P Ark CR Rep ( N Y)3Q2; Tyler v Greenlaw, 5 Ran d ( Va) 711 Different Count Y Where it appears from a recognizance that the court at which the accused is bound to appear is in a different county from that in which the offense was committed, this does not render it voi d Dean v State, 2 Smed M (Mis S) 200 A recognizance which binds the ac- cused to appear at a court in a different county from that in which he is in- dicted, but to which court the case has been properly transferred by an order changing the venue, is a valid recog- nizanc e Hall -v State, 15 Ala 431 1 Gary v State, II Tex App 527; State v Becknall, 41 Tex 319 To Pay Penalt Y Where a recogni- zance is given for the appearance of the accused, it is not invalid because it omits to state "that on his default the sureties will pay the sum named therein to the commonwealt H" Co M v O'Daniel, 9 Bush (Ky) 551 2 State Treasurer v Seaver, 7 Vt 480; Treasurer v Rolfe, 15 Vt 9; Glasgow -v State, 41 Ka N 333; People v Millis, 5 Barb ( N Y) 511 A condition in a recognizance, " not to depart from the court without li- cense therefor," binds the accused not to depart from the term of the court at which he is held to appeaRState v Baker, 50 Me 45 Abide Order of Court.

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State v Cobb, 44 Mo Post Date: Thu, 31 Jul 2008 20:20:42 +0000
A recognizance conditioned to appear at the next term of the court and abide the order of the court binds the accused to perform any judgment rendered; and if after con- viction he fails to do so, it maybe for- feite d Neininger z/ State, 50 Ohio St 394- Where a recognizance is conditioned "to abide the order and judgment of the court," noncompliance with the judgment rendered is a breach of the recognizanc e State v Whitson, 8- Blackf (Ind) 178 Where the statute requires a recog- nizance to be conditioned for the ap- pearance of the accused to answer the charge made, a recognizance requir- ing the accused to appear and answer the charge, and also " to abide the final judgment rendered," is, as to the latter provision, more arduous than the law requires, and therefore is is voi d Turner v State, 14 Tex App 168 Payment. A recognizance condi- tioned not only for the appearance of the accused for trial, but also that he will pay any fine that may be imposed on him, is void as to the last condition, and cannot be forfeited for breach of it. State v Cobb, 44 Mo App 375 To Remai N Where the state re- quires a recognizance to state the court before which, and the time and place when and where the accused is to appear held, that a recognizance requiring appearance "at the next term of this court and there remain," etc, is invali d Williamson v State, 12 Tex App 169 3 Co M v West, i Dana (Ky) 165; Simpson v Co M, I Dana (Ky) 523; People v Rundle, 6 Hill ( N Y) 506; clearly to indicate what is charged, but not necessarily with the technical particularity required in an indictment.

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face as not showing Post Date: Thu, 31 Jul 2008 20:09:08 +0000
1 The offense People v Gillman, 12 N Y Supp 40; Kerns v Schoonmaker, 4 Ohio 331; Goodwin v Governor, i Stew p (Ala) 465; State Treasurer S Wood- ward, 7 Vt 529; Treasurer v Rolfe, 15 Vt 9; Dailey v State, 4 Tex 417; State v Gibson, 23 La An N 698; State v Woolen, 4 La An N 515; Dean v State, 2 Smed i M (Mis S) 200 Compare State v Nicoll, 30 La An N 628 Mere General Statement. A recogni- zance must distinctly state the offense with which the accused is charged; and where the statement thereof was " that the accused is charged by affi- davit of facts sufficient to constitute an offense," it was insufficient and the recognizance voi d State v Gordon, 41 Tex 510 Where the condition of a recogni- zance was " to appear and answer the charge herein," and there was no de- scription of the charge, it was held that the recognizance was bad on its .face as not showing that the accused was charged with an indictable offens e Simpson v Co M, I Dana (Ky) 523 Such Things as shall be Objecte d Where a recognizance is conditioned to appear and answer "such things as shall be objected" against the ac- cused, and to abide the order of the court, not to depart without leave, and, in the meantime, to keep the peace, its legal effect is that the prin- cipal shall appear at the next term of court and answer any charge brought against him, and be forthcoming be- fore the court at all times, and not merely at the next term of court after the date of the recognizanc e Such a recognizance is valid although it does not state what charge the principal shall answeRGildersleeve v Peopl e 10 Barb ( N Y) 35; People v Koeber, 7 Hill ( N Y) 39 Contra, State v Bangor, 41 Me 534- 1 Alabama State v Weaver, 18 Ala 293; Hall v State, 15 Ala 431; Hall -v State, 9 Ala 827; Browder v State, 9 Ala 58 Colorad O Chase v People, 2 Colo528 ; Waters v People, 4 Colo App 97 Illinoi S Wood v People, 16 111 171; Young v People, 18 111 566 Indiana Patterson v State, 12 Ind 86; Votaw v State, 12 Ind 497 Iowa State v Merrihew, 47 Iowa 112 KentucKy Fowler v Co M, 4 TB Mo N (Ky) 128 Maine State v Howley, 73 Me 42 Michiga N People v Dennis, 4 Mich 609; People v Rutan, 3 Mich 42 Missour I State v Weideman, 30 Mo App 647 New York People v Blankman, 17 Wen d ( N Y) 252 Tennessee State v Rye, 9 Yerg (Tenn) 386 Texa S Lockhart v State, 32 Tex Cri M Rep 149: Elkins v State (Tex Cri M App, 1893), 22 S W Rep 44; Reed v State (Tex Cri M App, 1893), 22 S W Rep 969; Cotton v State, 7 Tex 547; Van Way v State, 44 Tex 112; Wills -v State, 4 Tex App 613; Morris v State, 4 Tex App 557; Mc- Gee v State, II Tex App 520; Robin- son v State, II Tex App 309; Barrera v State, 32 Tex 644; Goldthwaite v State, 32 Tex 599; Sands v State, 30 Tex App 578 United State S U S v Dennis, i Bond (U S) 103 See also State v Eldred, 31 Ala 393; People v Wittelsberger, 39 Mich 259; Hampton v Brown, 32 Ga 251 Name of Offens e A recognizance which describes the offense charged by its name is sufficient.

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Keipp v State, 49 Ala Post Date: Thu, 31 Jul 2008 19:55:19 +0000
State v Birchim, 9 Nev 95; State v Hamer, 2 Ind 371 A recognizance is sufficient which describes the offense with which the accused is charged in the language of the statute relating to the offens e State v Gilmore, 81 Me 405; People TJ Baughman, 18 111 152 Where the offense with which the accused is charged has no specific name, the recognizance should specify and set out the ingredients of the offens e O'Bannon v State, 9 Tex App 465; Morris v State, 4 Tex App 554 Contra, State v Nicol, 30 La An N 628 A recognizance sufficiently states the offense charged if it states the offense by its technical name or di- rectly states the acts charged, viz.: " He cut and stabbed the parity ia- charged must be one punishable by law, and it must be so de- scribed that it will clearly appear that a breach of the law has been committe d 1 If the offense charged be stated in the alter- jured [naming him] with intent to kill hi M" Turner v State, 41 Tex "Selling lottery tickets" is suffi- cient. Keipp v State, 49 Ala 337 "Assault with intent to kill" is sufficient.

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