The judgment of the court was pronounced by
Kixg, J.Jones was indicted for “entering a dwelling house in the night time, with intent to steal”, and found guilty of the offence. From the judgment pronounced upon that conviction he appealed. Pending the appeal he was admitted to bail by the district judge, who fixed the amount of the bond to be furnished, and approved of the sureties offered. A bond was executed in the presence of the deputy sheriff by the accused and his sureties, conditioned for the appearance of the former before the First District Court on a day stated, “ to answer to the complaint brought against him for entering a house without breaking, with intent to steal, and not depart thence without leave”, &c. The defendant 'having failed to appear on the day fixed, the bond was declared forfeited, and a judgment rendered .against the principal and his sureties for its .amount. From that judgment the sureties have taken this appeal.
Before considering the objections to the judgment of the lower court set forth, in the assignment of errors filed by the appellants, it becomes necessary to dispose of the question raised in regard to the character of dxe obligation entered into, and to determine whether it be a bond or a recognisance, and whether it was given .to prosecute the appeal, or to secure the appearance of the accused to abide the final judgment of this court. The instrument is clearly not a recognisance. It was not entered into before a magistrate, nor with any of the forms indispensible to give it the force and eifeel of a recognisance, properly so termed. The order of the judge contemplated that a bond should be given, and not a recognisance entered into. It is equally clear that it is not an appeal .bond. It was not ordered to be given on a motion for an appeal, but on ap application of the accused to be admitted to bail. It has none of the conditions of an appeal bond, and the judge was not authorised by law to require an .appeal bond, on granting an appeal in a criminal case. ■ Acts of 3r846, page 100, §8.
The power of the judge to admit the accused to bail after conviction, underwent a very elaborate examination in the court below. Under our legislation on this subject, we think the question free from doubt. The 108th article of the constitution declares that “ all persons shall be bailable by sufficient sureties, unless for capital offences where the proof is evident or presumption great.” Prisoners convicted are not excepted. The act of the 30th May, 1846, §10, p. 100, permits the accused to be bailed after conviction, if the offence be bailable, when an appeal is granted, on a bond to be approved by the judge. The only bond which the judge was authorised to require .of the accused was a bail-bond, and it is with reference to such a bond that the objections urged by •the appellants must be considered.
The appellants have assigned the following errors: 1st. The recognisance is conditioned that the defendant shall appear before the First District Court, on the first monday of December 1846, then and there to answer, &e., when in feet at the time the recognisance was taken, and when it was declared forfeited, no such complaint was pending in that court, but the same was pending in the Supreme Court. 2d. The deputy sheriff who took the recognisance had no authority to do so. 3d. The bond or recognisance sets forth no offence or crime whatever. 4th. The recognisance was not taken in accordance with the order of the judge.
I. We have seen that under the aet of 1846, the district judge had not entirely divested himself of jurisdiction of the case by granting the appeal, but was still authorised to admit the defendant to bail. The bond for his appearance was properly made returnable before the District Court, which alone was *15empowered to order the execution of the final decree which might be rendered on the appeal. Acts of 1846, p. 102, § 5.
II. It is contended that the taking of a recognisance is a judical act, which the sheriff, who is a ministerial officer, could not perform. ¥e have seen that the instrument under consideration is not a1 recognisance, but a bond. The granting of bail, and determining the amount in which the parties shall be bound, are judicial acts. These were performed by the judge in the present instance. The bond being subject to none of the rules peculiar to recognisances, may be validly executed in the presence of such officer of the court, or other person, a.s the judge may delegate to receiv'e it.
III. The third objection urged is, in otír opinion, fatal to the validity of the bond, as far as relates to the sureties. No such offence is known to our laws as that for which the accused bound himself to appear and answer. The charge stated in the bond involved no violation of the criminal laws of the' State, and if proved would have subjected the accused to no punishment. It has been held “ that no judgment can be rendered on a recognisance forfeited, when the charge is not such as will warrant a criminal prosecution”. 3 J. J. Marshall’s Rep. 641. The principle upon which the decision depends applies equally to bonds. It has not been shown that the sureties were aware of the charge really preferred against Jones, and of which he was convicted; nor that they consented to become sureties for his appearance to answer any other charge than that stated in the bend. As the bail-bond is not necessarily taken before the court, and in the present instance was not so taken, the sureties are not to be presumed to have any other information in regard to the cause of taking it than that derived from the instrument itself,- nor that they intended to obligate themselves further or otherwise,- than is stated in the bond. If the cause of taking the bond be incorrectly stated the defect cannot, as regards the sureties, be supplied,, as in the case of a recognisance, by reference to the indictment. In the absence of proof the suretiei cannot be supposed to have intended to answer for the appearance of the accused to meet a grave criminal charge, when the bond- itself sets forth the charge to be an act involving no crime whatever.
In the case of the State v. Martel, (3 Rob. p. 22,) to- which our attention has-been directed, the condition of the bond was for the appearance of the accused “ to answer such matters and things as shall be objected against him on behalf of the State, and not depart”, &c. It was notobjected in that case that the bond was insufficient in consequence of no specific offence having been stated, nor is it necessary to determine whether such an objection could have been successfully urged. There is a marked difference between the bond in that case and the present. In the former, the sureties bound themselves for the-appearance of the principle to answer all charges that might be found against him. In the present, they have obligated themselves for the appearance of the accused to answer to a specific charge, which is not a punishable offence, and therefore not a sufficient cause upon which to found a bond.
It is therefore ordered that the judgment of the District Court, as far as relates to the appellants Hoioell and Mitchell, be reversed, and that there b© judgment in favor of said appellants.