Who May Admit to, and Take Bail; Proceedings on Application, Etc. 6331. (4351) (4409, 4411) (4831, 4849) (4160, 4241) (608, 690) How bail for felony fixed; taken by sheriff.—When a bill of indictment is filed in court charging the defendant with a bailable felony, and the defendant fails to give bail in open court, the judge of the court must forthwith indorse on such indictment the amount of bail to be required of the defendant; and, when an application for bail is made to any judge or chancellor in vacation, such judge or chancellor may fix the amount of bail; and the sheriff has authority, and it is his duty, to discharge such defendant in term time or vacation, on his giving bail as required. This section shall not have effect to prevent application for bail, or for reduction of bail, in any other manner provided by law. (Feb. 28, 1887, p. 117.) Order for bail on petition for habeas corpus.Callahan v. State, 60 Ala. 65. Judgment on bail bond cannot be assailed collaterally on the ground it was approved by the sheriff in case of felony. Dunkin v. Hodge, 46 Ala. 523. 6332. (4352) Amount of bail indorsed on writ of arrest.— When a writ of arrest is issued upon an indictment, the clerk issuing the writ must indorse thereon an order to the sheriff to take bail of the defendant in the amount fixed by the judge and indorsed by him on the indictment. (Feb. 28, 1887, p. 117, § 2.) Ex parte Robinson, 108 Ala. 161 (18 So. 729). 6333. (4353) (4410) (4832) (4161) (609) When sheriff may discharge on bail for misdemeanor.-If the indictment charges a misdemeanor, and the defendant is committed to jail for want of bail, the sheriff may, at any time, discharge him on his giving bail in the amount required. See citations to § 6330 (4350). 6334. (4354) (4412) (4848) (4240) (689) When probate judge may take bail.-A judge of probate, within his county, has the same authority to admit to bail that is by law conferred on a chancellor or circuit judge to admit to bail in vacation. Ex parte Keeling, 50 Ala. 474; Ex parte Ray, 45 Ala. 15; Hale's case. 24 Ala. 80. 6335. (4355) (4413) (4850) (4242) (691) Only one application allowed; exceptions reserved and taken to supreme court. -When an application for bail is made to a chancellor, or to any circuit or city court in term time, or to any circuit judge, city judge, or judge of probate in vacation, and is refused, no subsequent application can be made; but the evidence in such case may be set out on exceptions, and application made thereon to the supreme court. If case heard before lower court on evidence, etc., defendant cannot claim another such bearing; only remedy to set out evidence on exceptions, and apply When Bail Allowed. to supreme court.-Ex parte Carroll, 36 Ala. 300; Ex parte Campbell, 20 Ala. 89. If bail refused, he may petition supreme court for a revision.-Ex parte Croom, 19 Ala. 561. But unless lower court clearly erred, its decision permitted to stand.-Ex parte McAnally, 53 Ala. 496; Ex parte McCrary, 22 Ala. 65; Ex parte Weaver, 55 Ala. 250; Ex parte Allen, Ib. 258; Ex parte Nettles, 58 Ala. 268. The way to get the case heard before the supreme court.-Ex parte Croom, 19 Ala. 561. Noț a matter of right to withdraw application for bail; state has an interest in the hearing, if begun, and court may proceed to determine it.-Ex parte Campbell, 20 Ala. 89. 6336. (4356) (4414) (4851) (4243) (692) How bail fixed and taken in such case; duty of sheriff.-When an order is made by the supreme court admitting a defendant to bail, the order must fix the amount of bail required, and direct the same to be taken by the chancellor or judge to whom the primary application was made, or by the sheriff of the county in which the defendant is confined; and when such bail is ordered to be taken by a chancellor or judge the sheriff having the custody of the defendant must carry him before such chancellor or judge for that purpose. Order for bail is properly directed to the sheriff having the custody of the defendant, and bail is properly taken by such sheriff, though the prosecution be pending in another county and circuit.-Holcombe's case, 99 Ala. 185 (12 So. 794). 6337. (4357) (4415) (4842) (4234) (683) When bail not allowed. A defendant cannot be admitted to bail when he is charged with an offense which may be punished by death, if the court or magistrate is of the opinion, on the evidence adduced, that he is guilty of the offense in the degree punished capitally; nor when he is charged with a personal injury on another which is likely to produce death, and which was committed under such circumstances as would constitute murder in the first degree if death should ensue. For origin and history of this chapter, see Toulmin's Digest, pp. 219-223. (Clay's Digest, p. 444, § 40.) The fact that defendant was admitted to bail before trial, conviction and sentence cannot be considered in determining the right to bail after conviction.-Ex parte Williams, 114 Ala. 29 (22 So. 446). Where bail is fixed on preliminary hearing, defendant not entitled to it after indictment found; one preliminary no bar to a second.-Ex parte Robinson, 108 Ala. 161 (18 So. 729), overruling State v. Skelton, 104 Ala. 98 (16 So. 74). The common-law rule of admitting to bail, and the constitution and When Bail Allowed. statutes construed in connection therewith.-Ex parte Croom, 19 Ala. 561; Ex parte Bryant, 34 Ala. 270; Ex parte McAnally, 53 Ala. 496; Ex parte Mahone, 30 Ala. 49; Hammon's case, 59 Ala. 164. Rules in determining whether a case is bailable: (1) May the offense be punished capitally, not that it must be.-Ex parte McCrary, 22 Ala. 65; Ex parte McAnally, 53 Ala. 496. (2) If it may, and the proof is evident, or the presumption great of the defendant's guilt, bail should be denied.-Ib. 65; Ib. 495; Ex parte Mahone, 30 Ala. 49; Ex parte Banks, 28 Ala. 89; Ex parte Howard, 30 Ala. 43; Ex parte Bryant, 34 Ala. 270. (3) If a well-founded doubt exists as to defendant's guilt, the proof cannot be said to be evident, or the presumption great; and the accused is then entitled to bail as a matter of right.-Ex parte Bryant, 34 Ala. 270; Ex parte Banks, 28 Ala. 89; Ex parte Acree, 63 Ala. 234. (4) Accused must be presumed to be guilty in the highest degree, which presumption must be overcome by proof.-Ex parte Vaughan, 44 Ala. 417. (5) Bail may be denied whenever the judge would sustain a capital conviction by a jury on the same evidence.-Ex parte McAnally, 53 Ala. 496; Ex parte Nettles, 58 Ala. 268; Ex parte Brown, 65 Ala. 446; Ex parte Sloane, 95 Ala. 22 (11 So. 14). (6) Bail should be denied in assault with intent to murder, when wounded party in danger of dying within a year and a day.-Ex parte Andrews, 19 Ala. 582. Pecuniary condition of defendant taken into account.Ex parte Banks, 28 Ala. 89. A prisoner held under charge punished capitally is entitled to bail as matter of right unless the proof is evident or presumption great.-Ex parte Sloane, 95 Ala. 22 (11 So. 14); Ex parte King, 86 Ala. 620 (5 So. 863); Ex parte Bonner, 100 Ala. 114 (14 So. 648); Richardson's case, 96 Ala. 110 (11 So. 316). It is also the rule that revisory courts will give much weight to judgment of lower court which saw the demeanor and could judge of the prejudice of the witnesses.-Ex parte Sloane, 95 Ala. 22 (11 So. 14). On application for bail of prisoner who is under indictment for murder, the indictment makes a prima facie case for the state, and the burden is on the defense.-Ex parte Rhear, 77 Ala. 92. Evidence examined and held not sufficient to justify a denial of bail.-Ex parte King, 86 Ala. 620 (5 So. 863); Ex parte Dykes, 83 Ala. 114 (3 So. 306); Ex parte Hammock, 78 Ala. 414; Ex parte Bryant, 34 Ala. 270. When prisoner has been regularly committed and applies for bail on habeas corpus, the order of commitment is a prima facie case for state; but if state examines witnesses and they fail to make out a case, defendant should be discharged.-Ex parte Robinson, 86 Ala. 622 (5 So. 827). 6338. (4358) (4416) (4843) (4235) (684) When matter of right. In all other cases than those above specified, the defendant is, before conviction, entitled to bail as a matter of right. (Clay's Digest. p. 444, § 40.) In case of misdemeanor.-Hammons' case, 59 Ala. 164; Callahan's case, 60 Ala. 65; Taylor v. Smith, 104 Ala. 537 (16 So. 629). In capital felonies "unless proof evident or presumption great.' Ex parte McAnally, 53 Ala. 496; Hammons case, 59 Ala. 164. See, also, note to preceding section. 6339. (4359) (4417) (4844) (4236) (685) When allowed in capital cases on two continuances by state. In cases punished capitally, the defendant is entitled to bail as a matter of right, when the state, after the finding of the indictment, has continued the case twice, without his consent, for the testimony of absent witnesses. The fact that defendant was admitted to bail before trial, conviction, and sentence cannot be considered in determining the right to bail after conviction.—Ex parte Williams, 114 Ala. 29 (22 So. 446). Under this section, the Form, Qualifications, and Return of Bail. right to bail is confined to continuances "for the testimony of absent witnesses"; does not extend to continuances for other causes.-Ex parte Carroll, 36 Ala. 300. 6340. (4360) (4418) (4845) (4237) (686) When dismissal of indictment taken as a continuance.-In such case, if the indictment is dismissed, the defendant, on application for bail, is entitled to the benefit of any continuance had upon such indictment by the state for absent witnesses; and if another indictment is not found at the same court at which the former is dismissed, the order of dismissal is to be taken as a continuance by the state for absent witnesses. (Aikin's Digest, p. 121, § 40.) SECTION. ARTICLE 4. FORM, QUALIFICATIONS, AND RETURN OF BAIL. 6341-6348. 6341. Bail in open court; form of entry. 6342. Bail not in open court; form 6343. Qualifications of bail. 6341. (4361) (4419) (4846) (4238) (687) Bail in open court; form of entry.-When bail is taken in open court, it must be entered on the minutes, and may be as follows: VS. The State) Came into court the said A. B., and also C. D. and E. F., and agreed to pay the State of A. B. J Alabama dollars (specifying the sum prescribed by the court), unless the said A. B. appears at the present term of this court, and from term to term thereafter until discharged by law, to answer a criminal prosecution for an assault and battery (or other offense, as the case may be). Form of recognizance.-Goodwin v. Governor, 1 Stew. & Port. 465. Taking no steps as to forfeiture operates a discontinuance.-Goodwin v. Governor, 1 Stew. & Port. 465. 6342. (4362) (4420) (4847) (4239) (688) Bail not in open court; form and requisites of.-When not taken in open court, the undertaking of bail must be in writing, signed by the defendant and at least two sufficient sureties, and approved by the magistrate or officer taking the same; and may be substantially in the following form: Form, Qualifications, and Return of Bail. County. The State of Alabama,) We, A. B., C. D., and E. F., agree to pay to the State of Alabama dollars (the sum prescribed by the magistrate or officer) unless the said A. B. appears at the next term of the -court of county, and from term to term thereafter until discharged by law, to answer a criminal prosecution for the (specifying the particular offense with which offense of he is charged). (Signed) A. B. C. D. E. F. Approved, G. H., Judge, etc. Appeal bond from justice of the peace's court is in effect an appearance or appeal bail.-Tolleson v. State, 139 Ala. 159 (35 So. 997). Where the court ordered that charges against defendant be continued for investigation by the next grand jury, bail is not discharged there being no discontinuance.— State v. Fuller, 128 Ala. 45 (30 So. 506). Where the appearance bond omitted the name of the defendant entirely, it is insufficient to support a judgment upon forfeiture.-State v. Fuller, 128 Ala. 45 (30 So. 506). Scire facias against bail on a forfeited recognizance, the undertaking of bail is no part of the record. Hendon v. State, 49 Ala. 380. Undertaking of bail, taken on Sunday, during vacation, valid and sanctioned by law.-Hammons's case, 59 Ala. 164. So, an undertaking is not void because of certain irregularities on habeas corpus. Merrill's case, 46 Ala. 82. Parties may sign by initial, or mark, or other designation.-Hammons's case, supra. Not void because officer fails to indorse thereon "approved," and sign such indorsement.-Ozeley's case, 59 Ala. 94. Its acceptance, etc., may be otherwise proved.—Ib. An agreement to become bail, on deposit of amount of money with surety, is void as against public policy; and money so paid cannot be recovered back.-Dunkin v. Hodge. 46 Ala. 523. A recognizance held valid, though not sealed.-Hall's case, 9 Ala. 827. So of a recognizance certified by justice of peace under his signature. Howie's case, 1 Ala. 113; Badger's case, 5 Ala. 21. Omission of names from body of undertaking does not impair it, if regularly acknowledged. -Badger's case, supra. Bond with condition not required by law, not invalid, but only inoperative as to such condition.-Whitted v. Governor, 6 Port. 335; Howie's case, 1 Ala. 113. Not affected by change of time of holding court from that expressed.-Walker's case, 6 Ala. 350. When recognizance joint and several.-Ellison's case, 8 Ala. 273. The following held sufficient designation or description of the offense: Of selling lottery tickets, etc.-Keipp's case, 49 Ala. 337. Of conspiracy.-Hall's case, 15 Ala. 431. Of carrying concealed weapons.-Hall's case, 9 Ala. 827. Of retailing without license.Shreeve's case, 11 Ala. 676. Of resisting process.-Browder's case, 9 Ala. 58. Of malicious mischief; the indictment being for "intentionally injuring telegraph wires."-Welch's case, 36 Ala. 277. So of manslaughter, the indictment being for murder.-Gresham's case, 48 Ala. 625. Variance in defendant's name immaterial.-Tolison's case, 39 Ala. 103. Bail are not discharged on failure to indict at first term, when cause regularly docketed and continued.Kyle's case, 99 Ala. 256 (13 So. 538). But if no indictment found at first term and no order is made continuing the cause for investigation, and no order whatever made in the case, bail are discharged.-Rogers' case, 79 Ala. 59. And in such case the defendant may be discharged on habeas corpus. -Ex parte Stearnes, 104 Ala. 93 (16 So. 122). When principal required to give new bail and is ordered into custody, sureties on first bail-bond discharged.-Posey's case, 79 Ala. 45. 6343. (4363) (4421) (4855) (4247) (696) Qualifications of bail. The qualifications of bail are, that each must be a resi |