State v. Beebe

Bail; Recosnizastoe; Sheriff; Escape from Ckslodnj. Where a person charged with the commission of a criminal offense is at liberty on bail, and his sureties with his consent, but without any copy of the recognizance, deliver him to the sheriff, taking his receipt therefor, held, that the sheriff, without having any copy of the recognizance, cannot lawfully hold the accused in custody against his will; and therefore, that the accused in such a case may escape from the custody of the sheriff -without committing a felony, and also that any other person may assist him to escape without committing a felony.

Appeal from Sedgwick District Cov/rt. In October 1873 one Joseph Lowe was arrested upon a warrant charging him with the commission of a felony. He waived an examination, and entered into a recognizance iu the sum of $2,000, with two sureties for his appearance to the next term of. the Sedgwick district court. On the 8th of December afterward his sureties, “at Lowe’s request,” (as they testify,) “turned Lowe over to the sheriff verbally, and took the sheriff’s receipt for him.” The receipt is as follows: “Received of S. H. K. and R. M. S., sureties on the recognizance of Joseph Lowe, the body of said Joseph Lowe. December 8th, 1873. “Wm. Smith, Sheriff of Sedgwick Co.” On the 13th of said December Lowe escaped, and the defendant Beebe was charged by information with aiding and assisting in such escape. Other facts are stated in the opinion, infra. The action against Beebe was tried at the December Term 1873 of the district court. Verdict of guilty, and judgment on the verdict. New trial refused, and Beebe brings the case here by appeal. The principal question in the case is, whether Lowe was in the lawful custody of the sheriff at the time of his escape. The facts as disclosed by the evidence are as follows: Lowe was charged with shooting one ¥m. Anderson, with intent to kill. Lowe was out on bail. On the 8th of December, before court commenced, at the request of Lowe, his sui'eties surrendered him to the sheriff and took a receipt for him. This surrender was made by turning him over to the sheriff without delivering any copy of Lowe’s recognizance with him. The sheriff then delivered Lowe to one John Nugent, to guard. Nugent was not a deputy, nor sworn bailiff. On the 13th of December Lowe made his escape from Nugent. We claim, on the part of the appellant, that Lowe was not in the lawful custody of the sheriff at the time of his escape; and if not, then Beebe could not be punished for the crime of assisting him to escape. Sec. 177 of the crimes act refers expressly to aiding persons to escape from the lawful custody of the officers or other persons. If the custody of the sheriff was not lawful, then Nugent’s could not be. This question of lawful custody involves a construction of §§ 148 and 150 of our criminal code. Sec. 148 provides for the surrender of a principal by his sureties, and requires that they procure a certified copy of the recognizance, by virtue of which they cap take the principal and surrender him to the sheriff. Sec. 150 requires that the sureties must deliver such copy, with their principal, to the sheriff, and the sheriff must acknowledge the surrender in writing. We claim that Lowe was.not in the lawful custody of the sheriff for the reason that these sections have not been complied with. The district court instructed the jury that this surrender was good, and sufficient to warrant the jury in finding that Lowe was in the lawful custody of the sheriff. We think this is not the law of the case. The defendant asked the court to instruct the jury that if they found “ from the evidence that Lowe was out on bail, and had been delivered up to the sheriff by his bail, in' order to render his custody lawful Lowe’s bail must deliver a certified copy of his recognizance to the sheriff with the body of Lowe,” which the court refused. We think the instruction asked by defendant embodied the law in the case, and should have been given. The court seemed to think that the fact that Lowe’s surrender was made with his consent, or at his request, would obviate the necessity of a compliance with said §§ 148,150. Lowe’s consent or request in that behalf could certainly make no difference with the appellant in this case. The sheriff should have something to show by what authority he held the prisoner, and in this case it should have been a copy of Lowe’s recognizance. Lowe was being guarded by Nugent, who as the evidence shows was not an officer of the law; and he had nothing but the verbal order of the sheriff for Lowe’s detention. Unless the sheriff had the lawful custody of Lowe himself, he certainly could not transfer it to a private individual, and one in the pay of Lowe — and the evidence shows that Lowe was to pay Nugent for his time in guarding him. Upon the subject of escapes, we again refer to § 177 of the crimes act, and to 2 Bishop Crim. Law, § 1034. In some cases the principal might be liable, and the aider not, but in this case neither would be liable. If Lowe could not have been punished for an escape, certainly Beebe could not for assisting him. The point relied upon by the appellant is, that the sureties in the recognizance for the appearance of Lowe did not procure a copy of Lowe’s recognizance and deliver it with Lowe to the sheriff. The object of procuring the copy of the recognizance, under § 148 of the criminal code, is, to enable the surety to talce the principal. Having a copy, the surety is armed with evidence of an existing fact which enables him to overcome the will of the principal, and take him without his assent. It is not the copy that gives the power; it is the existence of the fact of the recognizance that gives the power to take and surrender the principal. A certified copy is but evidence of the fact. Without the evidence of the- fact, the surety cannot compel the principal contrary to his will; but where the principal comes voluntarily, and requests his surety to surrender him, and voluntarily places himself in the custody of the surety for that purpose, there is no will to overcome — the assent of the principal is obtained. There is no talcing to be done, and the necessity for the sureties having a copy of the recognizance is obviated by the act of the principal. There is no necessity of evidence of the fact of the recognizance, for that fact the principal admits by his action, and waives all right'to demand the production of the copy of the recognizance. Now in such a case, if it is not necessary for the sureties to have a copy of the recognizance in order to accept the principal’s voluntary surrender of himself, it is certainly not essential for him to deliver such copy to the sheriff in order to enable the sheriff to accept the surrender from the sureties. Perhaps Lowe might have refused to be taken and surrendered without a copy of the recognizance being produced; but when it is done at his own request, it ought to be considered that he waived the formality. It is questionable from the language of § 148 whether it is intended to apply where the principal is found in the county where the recognizance is of record, and the proceeding pending ; for, independently of this statute, the bail has the right to surrender his principal. The recognizance is of record in the court of the county where the principal must appear. In the other counties of the state it is not. The object of the provision of § 148 was two-fold: to arm the surety with the evidence of his authority in those counties where such authority was not a matter of public record, and also to give immunity to the principal from an otherwise unauthorized arrest. But it seems reasonable that-this immunity is one of the rights which a man may waive. Lowe stood charged with crime. He voluntarily placed himself in custody, and the sheriff had the right to hold him, and that is the test of “ lawful custody.”