People v. Moore

4 N.Y. Crim. 205

• Court: New York Court of General Session of the Peace
• Decided: June 15, 1886
• Status: Published

Opinion

Smyth (Recorder).

The defendant, Katherine E. Moore, was arrested in the month of October, 1885, upon a warrant issued by a police justice of this city upon a charge of grand larceny •committed in the city and county of Mew York, and upon being '.brought before the justice she was held to answer at the Court of General Sessions and was thereupon admitted to bail An undertaking in the form prescribed by the Codje of Criminal Procedure was executed by her as principal and by George W.. Du Bois as surety.

In December, 1885, the defendant was surrendered by the-governor of this State to the authorities of the I State of Mew Jersey upon a requisition made by the governor of that State-to answer an indictment for larceny alleged to have been committed by her in the State of Mew Jersey.

The arrest and surrender of the defendant to the authorities, of Mew Jersey was without the knowledge or consent of Du Bois, her surety.

On the 14th of April, 1886, the defendant having been indicted by the grand jury of this county upon the charge upon which she was arrested and bailed, was called for trial in the Court of General Sessions and failing to appear an order was-made by the court, on the motion of the district attorney, forfeiting the bail

These facts appear by the motion papers and are conceded by the district attorney to be correctly stated.

The surety, Du Bois, now moves for an order setting aside-the forfeiture and exonerating him as bail for the defendant.

By a recognizance of bail in a criminal action the principal is-in the theory of the law, committed to the custody to jailors of his own choosing, and there is an implied covenant on his part with his sureties when he is admitted t will not depart out of the jurisdiction of the court he is bound to appear by the terms of the reco there is also an implied covenant on the part of th when the recognizance of bail is accepted that it w way interfere with this covenant between them obligations, or take any proceedings with the pri will increase the risks of the sureties or affect of the surety, d bail, that he before which gnizance, and. government ill not in any or impair itsncipal which heir remedy against the principal. Reese v. United States, 9 Wall. 13.

And in Taylor v. Tainter (16 Wall. 366), it was settled law of this class of cases is, that the bail will 1 when the performance of the condition is rendere by the act of God, the act of the obligee, or the act of the law;. held that there exonerated d impossible- and that where the principal was arrested upon a warrant issued by the governor of the State where the recognizance was given, upon the requisition of the governor of another State and the principal was demanded by the State making a requisition, the State from which he was removed could no longer require his appearance before its tribunals, and that all obligations which she had taken to secure that result thereupon at once ipso fado lost their binding effect. See, also, Bishop Crim. Pro. § 264, and cases cited in note.

The case presented by the moving papers is clearly within, the authorities above cited and it follows that the motion must. therefore be granted