The opinion of the court was delivered by
Allejst, J.:The only question in this case is, whether, under the facts found by the court, the defendant had complied with the condition of the recognizance. The trial court finds that he appeared to receive sentence, and thereafter presented himself to the sheriff for. the purpose of being taken into custody ; that the sheriff declined to take him, and asked him to wait till the next day.
The liability of the sureties terminated when the defendant had fully complied with the terms of the recognizance. Section 256 of the criminal codet provides:
“Where any convict shall be sentenced to any punishment, the clerk of the court in which sentence was passed shall forthwith deliver a certified copy thereof to the sheriff of the county, who shall, without delay, either in person or by a general or usual deputy, cause such convict to receive the punishment to which he was sentenced.”
The sheriff made two excuses for not taking the prisoner into custody at the time he offered to surrender himself, namely, that he had no papers by which t& hold him, and no place to keep him over night. Neither of the excuses was good. The law makes it the duty of the clerk to forthwith deliver the sheriff a certified copy of the judgment; and where the party himself raised no objection to being taken into custody on the ground of want of papers, we do not think the sheriff himself .can make it. But a very brief time would be required for the clerk to make up the record and certified copy thereof re-r quired by the statute. As to the other objection, it is the duty of the sheriff to take prisoners into his custody and keep them. If he has no convenient place for doing so, he must use one that is not so convenient. Sureties on criminal recognizances are not bound to answer for the conduct of a prisoner after it *253becomes the duty of the sheriff to take him into custody, after judgment, and after the defendant has submitted himself for that purpose.
The words “not depart without leave” in the bond do not mean that the defendant will not escape from the custody of the sheriff. The “leave” means leave of the court. So far as the record shows, the sentence was final, and to be executed at once. There is nothing showing that the court granted any stay, or directed the defendant to appear in the court at any future time. Under the ruling in In re Strickler, 51 Kas. 700, 33 Pac. Rep. 620, the operation of the sentence began at once, and it was the duty of the sheriff to carry it into effect. See, also, Moorehead v. The State, 38 Kas. 490; McGarry v. The State, 37 id. 9.
Judgment will be reversed, with the direction to enter judgment, on the findings of the trial court, in favor of the defendants for costs.
All the Justices concurring.