People v. Gilman — 35 N.Y. St. Rep. 280

Majority

p. 280

The People, App’lts, v. Frederick R. Gilman, Resp’t.^[1]

(Court of Appeals,

Filed January 20, 1891.)

Headnote

1. Bail—Recognizance.

The statement of the offense charged is not of the essence of the undertaking of hail, nor does it bear very materially upon the obligation, and its omission does not render the undertaking void.

3. Same.

While the prisoner is in custody, whether that of the sheriff or surety, he is held to appear as well upon any other charge of crime.for which he may be subsequently indicted.

Appeal from judgment of the supreme court, general term, second department, reversing judgment for plaintiffs on trial hy the court without a jury.

Martin Heermance, district attorney, for app’lts; Herman Frank, for resp’t.

The defendant being sued by the plaintiffs as the surety upon an undertaking of bail, objects, in effect, that it was void and of no force, because the crime or charge was not therein specified. The occasion of its execution was the admission to bail of one Frank Cava, at the time in custody of the sheriff upon a charge of assault in the second degree. The instrument was a printed form, in the language of § 568 of the Code of Criminal Procedure, and the defendant became thereby surety for the prisoner's appearance, and for his being at all times amenable to the order and process of the court, unless his undertaking was rendered nugatory by reason of an omission to fill in the blank in the recital intended for the specification of the nature of the crime. The general term reversed a judgment recovered by the People, holding that in their opiniori the bail bond was void for the omission, and relying upon the authority of decisions rendered prior to the adoption of the present Code. But those decisions upon the question of recognizances taken under the Revised Statutes we do not consider to be controlling in this case. The written undertaking upon the bailing of prisoners is required by the Code of Criminal Procedure to be in “ substantially ” the form there given. It is a legal proceeding in the case by which the accused person is admitted to bail. He is not thereby discharged, but he is permitted to go in custody of his bail, instead

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of remaining in that of the sheriff. As it was said by Buggies, J., in Champlain v. People, 2 Comst., 82, his bail is bound to have him as much in the power of the court as if he were within the prison walls. Being a proceeding under the Code, an error or mistake in the undertaking will not render it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice in respect to a substantial right. Code Grim. Pro., § 684.

The applicability of this section to the case of the surety is, in this respect, that he cannot claim the undertaking, formulated by the Code for the putting in of bail, to be void because of some defect in its preparation, unless it be one which prejudices the defendant in the cause. That, obviously, is not the effect here of the omission. The prisoner was still in custody, under the charge upon which arrested, and he could not be discharged until by order of the court. Nor does it have any effect upon the surety, or render his obligation an imperfect one which the law will not enforce. "Under the Revised Statutes the recognizance was a matter of record; being entered in the minutes of the court and the substance thereof being read to the person recognized as bail. 2 R. S., 746, § 24; People v. Kane, 4 Denio, 530 .

In an action of debt on a forfeited recognizance, proof was required to be made of an ten try containing the acknowledgment of an indebtedness, the offense charged and the condition. The debt was then deemed conclusively evidenced by such record proof of the recognizance. By the present Code of Criminal Procedure a new practice is prescribed and a written undertaking is required to be put in. When executed in the form prescribed, or in substantial^ that form, the prisoner goes in custody of the person who has thereby become surety for his appearance, until the order of the court. As formerly, so ■now, being the voluntary act of the party, the undertaking permits the presumption of the regularity of the proceedings, and by coming into the proceeding in that manner, in behalf of the accused, the surety will be presumed to know upon what charge "the prisoner was held by the sheriff. The statement of the offense charged, therefore, is not of the essence of the undertaking of bail; nor does it bear very materially upon the obligation. It is rather a matter for recital and it bears upon the completeness of the instrument in form and historical detail. The undertaking binds the surety for the appearance of the prisoner, not merely to answer to that specific charge upon which he was admitted to bail, but, also, that he “ shall at all times render himself amenable to the order and process of the court, and, if convicted, shall appear for judgment and render himself in execution thereof.” While he is in custody, whether that of the sheriff or surety, he is held to appear as well upon any other charge of crime for which he may be subsequently indicted. The undertaking is in effect that the defendant in the proceedings shall be kept in custody and subject to the order of the court until discharged. When that occurs and not till then is the sur

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ety released. The consideration of the undertaking is the transfer of the prisoner from the custody of the sheriff to that of the surety, and provided that that instrument acknowledges an indebtedness conditional upon the performance of something to which a person may be legally bound under the Code, the law is satisfied and- omissions or mistakes such as we have here are not regarded.

The order of the general terip. should be reversed and the judgment of the special term should be affirmed, with costs.

All concur, except Ruger, Ch. J., not voting.