I. The ruling of the District Court upon the defendant’s demurrer cannot be reviewed by the Supreme Court,, as any error therein was waived by the defendant’s answer.
JI. It is assigned that the Court erred in the admission of the bond sued'on in evidence on the part of the plaintiff.
The first objection made to this bond is, that the County Judge of-Linn county could not take or accept the bond of a person admitted to bail by another officer or magistrate.
The provision of the Statute is, that when the defendant has been held to. answer for any bailable offense, the admission to bail may be by the magistrate who held him to answer, or by any Judge of the Supreme, District, or County Courts, or by the Court to which the depositions and statements are returned by the committing magistrate. It is obvious from this section, that the County Judge of Binn ’county had the power to accept the bail, and the bond Was not void for want of authority in the officer accepting the same.
It is in the second place objected, that the bond itself shows that the offense was not a bailable one, and that the bond, for this reason, was illegal and void. Section 3211 of the Code of 1851 provides that the defendant cannot be admitted to bail where he is charged with an offense punishable with death. The bond states that the defendant was “feloniously charged with killing two persons,” &c. This is not an offense necessarily punishable with death. *408Then the Constitution, § 12, art. 1, provided that “ all per' sons shall, before conviction, be bailable by sufficient sureties, except for capital offences where the proof is evident or the presumption great.” The section of the statute must be so construed, if possible, as to harmonize with the constitutional provision. The fact that the defendant is charged with an offense punishable with death, would not justify a recognizing magistrate in refusing bail, if the proof is slight, or that which was offered tended to show that it was an offense committed under mitigating circumstances, and would not be punishable with death.
In the third place, it is objected that this bond was not returned by the officer taking the same and filed with the Clerk, until the 25th day of October, 1860, long after the forfeiture was taken, and that there is no averment that the bond was so returned, in plaintiff’s petition, that there was no evidence introduced to show that it was filed before forfeiture.
■ Section 8244 requires the officer accepting the bond to file forthwith tbe same with the Clerk of the Court to which the papers are to be sent. The bond sued on was not on file in the District Court when it was declared forfeited, or without its being a part of the record or in any manner before the Court, we are unable to understand how it could be declared forfeited. There was. nothing before the’Court showing any obligation upon the part of the defendant to be present, or that the bail was liable for his failure to appear. It is said that this is not a proceeding by seire facias and need not be based upon a record. Conceding it to be true that the State under § 8240 of the Code of 1851 is not confined to its remedy by scire facias, but has the •right, as has been held in the case of The State v. Gorley & Cloud, 11 Iowa, 52, to bring suit as in debt upon the bond, yet there must be a forfeiture before a right of action accrues *409to the State, and without the bond before the Court there could be no default declared.
• It is claimed that the date of the indorsement by the ' Clerk is immaterial, for the law nowhere requires the Clerk to make any indorsement thereon; that it is the magistrate who files the papers with the Clerk. It is the duty of the Clerk to file every paper connected with the record of a cause when it is deposited in his office. The State, perhaps, would not have been prejudiced if the bond had actually been deposited with the Clerk before the forfeiture was declared, if the Clerk had omitted to mark the same filed, but it should be averred and proved that it was so deposited before the Court took any action thereon, otherwise it should not be admitted in evidence.
The cases cited by counsel of appellant sustain the position that such bond should be on file before such forfeiture coiild be declared, and particularly the case of Bacon et al. v. The People, 14 Ill., 312. Although this was a proceeding by scire facias, we think the principle is equally as applicable in action of debt on the bond. Says Treat, C. J.: “* * * It does not appear that the recognizance was returned to the Circuit Court before the judgment of forfeiture was pronounced. The statute requires every recognizance taken out of Court to be certified and returned into the Circuit Court. It is not a matter of record until this is done. It must become such before a -forfeiture can be entered or a scire facias can be issued upon it. The Court may compel the officer by attachment to return it, but it must become a record of the Court before a forfeiture can be declared.”
III. The appellants next claim that the Court erred in the admission in evidence of the record of forfeiture, showing that the defendant had failed to appear for the purpose of challenging the grand jury, as such evidence did not tend to establish any liability upon the sureties on the bond.
*410■ A defendant held to answer fox a public offense has the privilege of challenging the panel of the grand jury or any juror thereof, but he is not required to be present for that purpose. . If not present, this right is regarded as waived.- If the defendant does not appear for arraignment, •or trial, or judgment, or upon any other occasion when his presence in Court is lawfully required, the Court shall enter his default.
The defendant was not called prior to the default for either of these -purposes, or for any other purpose than to pass upon the grand jury before his default was declared. The'default was therefore premature and unauthorized; and it formed no proper foundation for the proceedings on the bond. Holding, as we do, in reference to the second and third points made by appellants, it is not important that the other questions should be referred to. The judgment is
Reversed.