State v. . Myrick

152 S.E. 400, 198 N.C. 490, 1930 N.C. LEXIS 385

• Court: Supreme Court of North Carolina
• Decided: March 19, 1930
• Status: Published

Opinion

Brogden, J.

Is an oral promise, made over a telephone, to á justice of the peace issuing a warrant, to sign a bail bond or enter into a recognizance, binding upon such purported sureties, who thereafter declined to sign said bond or enter into said recognizance ?

The earlier declarations of this Court upon the subject of bail bond tend to manifest a disposition to construe such instruments strictly. For instance, it was held in Walker Lewis, 3 N. C., 16, “that a bail bond having all the forms of such an instrument, except the seal, was invalid, and that the plea of nul tiel record would be upheld.”

Again, in Adams v. Hedgepeth, 50 N. C., 327, it was held that “the signing and sealing of a party at the foot of a bail bond, without his name’s being mentioned in the condition, or any other part of the body of the instrument, does not constitute him the bail of the party sued.” This case was dealing with certain aspects of a civil action, but the principle announced was broad and comprehensive. S. v. Edney, 60 N. C., 463. Of course, the law has been liberalized through the years and doubtless such technical objections would not now be permitted to prevail in criminal procedure. However, the distinction between a recognizance and a bail bond was thoroughly discussed in the case of S. v. Bradsher, 189 N. C., 401, 127 S. E., 349, by Connor, J. The authorities are therein assembled and applied. The purported instrument in the case at bar, under the law as interpreted by this Court, is neither a recognizance nor a bond. Hence the defendants are not bound thereon, and the judgment must be

Reversed.