People v. Brown — 37 N.Y. St. Rep. 178

Majority

p. 178

The People, Pl’ffs, v. Thomas Brown, Impl’d, Def’t.

(Supreme Court, General Term, Second Department,

Filed February 9, 1891.)

Headnote

1. Bail—Undertaking—Sufficiency.

An undertaking given upon an arrest is sufficient which recites the arrest of lhe principal and his imprisonment for a crime named and is conditioned that he will appear at the court of sessions and answer said charge.

3. Same—Legality of preliminary proceedings.

In an action upon such undertaking the legality of the proceedings preliminary to the arrest is not relevant or material if the arrest was under color of process.

3. Same—Defense.

It is no defense to such action that the district attorney told the principal’s counsel that he could go away and that he would send for him when he wanted him.

Exceptions ordered heard in first instance at general term. This is an action brought to recover the amount of the penalty of an undertaking of bail, upon which undertaking the defendant Thomas Brown was a surety.

The action was tried at the Richmond county circuit, September 26, 1890.

The court directed a verdict for the plaintiff for the full amount claimed, to which the defendant excepted. The court then directed exceptions to be heard in the first instance at general term.

George Gallagher, for def’t; Thomas W. Fitzgerald, dist. att’y, for pl’ffs.

A coroner’s found one James McGrloin guilty of manslaughter, and he was arrested by a warrant from the coroner, and on the 7th of February, 1890, while in custody under the coroner’s warrant in the county jail, gave a recognizance before the county judge of Richmond county to appear at the next court of sessions for that county, that being the next court at which a grand jury would attend. This court was held on the 24th of February, 1890, and the grand jury found a bill of indictment against McGrloin for manslaughter in the second degree. The indictment was found on the 27th of February, and on the 1st of March, 1890, McGrloin was called, and did not appear, and the sureties were called to produce McGrloin, and they failed to do so. The undertaking upon the part of the prisoner and his sureties was sufficient in form. It recited the arrest of McGrloin, and his imprisonment for manslaughter in the second degree. The condition was that McGrloin would appear at the court of sessions and answer said charge, and that was the charge in the

p. 179

indictment, not in words, but by description of the offense. The legality of the proceedings preliminary to the arrest were not relevant or material. The arrest was made under color of process, and the defendant accepted the fact, and gave bail to answer before the grand jury. The offer to prove that the district attorney told the counsel for McGHoin that he could go away, and that when he wanted him he would send for him, was no defense. Champlain v. People, 2 N. Y., 82 ; People v. Stager, 10 Wend., 431 .

The judgment should therefore be affirmed, with costs.

Dykhan and Pratt, JJ., concur.