State v. Bradsher, 189 N.C. 401 (1925)

April 8, 1925 · Supreme Court of North Carolina
189 N.C. 401


(Filed 8 April, 1925.)

1. Appeal and Error — Criminal Law — Bail—Statutes.

Upon- conviction of a misdemeanor, the appellant may now be released, as a matter of right, upon his giving a bail bond approved by the court as to its sufficiency. C. S., 4653.

2. Same — Recognizance.

In this State the difference between a recognizance and a bail bond, on appeal in a criminal action, is not recognized, and the obligation under each is held to be identical; and where the bail bond is given, with sureties, in accordance with the order of the court, approved as required therein, and filed with the court, it becomes in legal effect a recognizance.

3. Sam© — Form—Approval.

A bail bond for a criminal offense is not required to be in any particular form, and an order of court in respect thereto may designate the approval of the clerk as a prerequisite, or that of some other officer thereof.

4. Same — Signing of Sureties Upon Condition — Parties—Notice—Courts.

The failure of the principal to sign a bail bond is an irregularity that does not necessarily release the sureties thereon; and 1veld, sufficient if the sureties signed the bond in the presence of the principal, who delivered it to the clerk of the court, and it was approved by the clerk in accordance with the order of the court, and filed by him as a court record.

5. Same — Record.

Where the court has ordered that one convicted of a criminal offense be released on bail, pending an appeal, requiring the bond to be justified by the sureties and approved by the clerk, in or out of term, etc., any conditions between the parties upon which the sureties may have .signed will not be binding upon the State unless approved by the court, and the fact that the sheriff was aware of and approved these conditions is not available to the sureties seeking to avoid liability, and is not alone sufficient.

6. Same — Judgments.

AVhether the facts found by the trial judge and contained in the record would entitle the appellants to consideration in the Superior Court under the provisions of C. S., 4588, is not presented on this appeal. S&rnble, one of the sureties (appellants) who signed the bail bond conditionally, who was not present when the bond was delivered to the clerk, and had no notice of the discharge of the prisoner until the next day, would not be considered to have waived his rights.

Appeal by defendants, R. M. Spencer, R. W. Wilkerson, and W. J. Pettigrew, from judgment rendered by Calvert, J., at January Term, 1925, of PERSON.

At August Term, 1924, of said court, upon the trial of’ defendant T. C. Bradsher on an indictment charging him with violation of the *402statute relative to intoxicating liquors, there was a verdict of guilty. From the judgment upon this verdict defendant appealed to the Supreme Court. See 188 N. C., 447. Pending said appeal, defendant was required by the court to give bond, with two sureties, in the sum of $2,500, for bis appearance at the next term of the court. The court ordered that at least two sureties on said bond should justify, and that the bond should be approved by the clerk of the court.

Defendant was taken into custody by the sheriff of Person County. On the same day he filed with the clerk of the court a bond, in words and figures as follows:

“State v. T. C. Bradsher. ¥e, T. C. Bradsher, R. M. Spencer, R. W. "Wilkerson, and W. J. Pettigrew, . . . justly bound unto the State of North Carolina in the sum of twenty-five hundred dollars, to the faithful payment of which we bind ourselves, our executors and administrators firmly by these presents.

“Signed and sealed, this 6 August, 1924.”

This bond was upon condition that T. C. Bradsher should make his personal appearance at October Term of Superior Court of Person County or at the first term of said court after defendant’s appeal had been decided by the Supreme Court, and there abide the judgment of the court in this action. This bond is signed as follows:

“R. M. Speetcer, (Seal)

R. W. Wilkerson, (Seal) W. J. Pettigrew. (Seal)

- (Seal)

■-— (Seal)

“R. M. Spencer, R. W. Wilkerson, and W. J. Pettigrew, each being duly sworn, says that he is worth the sum of twenty-five hundred dollars, over and above all liabilities and exemptions allowed by law.

R. M. SpeNcee,


W. J". Pettigrew.”

Endorsed on the bond is the following:

“Subscribed and sworn to before me, this . August, 1924, as to Wilkerson and Pettigrew. D. W. Bradsher, C. S. C.”

Upon the filing of this bond, defendant T. C. Bradsher, with the approval of the clerk, was released from custody. At October Term, 1924, T. 0. Bradsher, having failed to appear, in accordance with the condition of his bond, was called out, and, having failed to answer, judgment nisi on the bond was entered. It was ordered that a writ of scire facias be issued.

*403Writ of scire facias was duly issued and served upon appellants aá sureties on said bond. At January Term, 1925, each of tbe appellants filed answer to tbe writ. Tbe court, having beard tbe evidence, found tbe facts as hereinbefore stated, and further found:

“5. That on tbe day during tbe August Term, 1924, on which tbe defendant T. 0. Bradsher was sentenced, be was taken into custody by tbe sheriff of Person County; that tbe defendant R. M. Spencer signed tbe bond set out in tbe record in tbe presence of said sheriff, after having an agreement with tbe defendant T. C. Bradsher that be, tbe said Bradsher, would procure five other men to sign tbe said bond, and that unless such five other signatures were procured tbe signature of Spencer was to be erased; that tbe said Spencer then asked tbe sheriff if be could sign tbe bond under such conditions, to which tbe sheriff replied that be could. At tbe time tbe defendant R. W. Wilkerson also appeared and signed said bond .in tbe presence of tbe sheriff, and stated that be was doing so upon tbe same conditions upon which Spencer bad signed it. That later in tbe same day tbe sheriff turned over tbe prisoner to bis deputy, M. T. Clayton, and instructed bis deputy not to consider tbe name of R. M. Spencer on said bond unless at least four other good men signed it.

“6. That M. T. Clayton and W. R. Gentry, both deputy sheriffs, were requested by tbe defendant T. C. Bradsher to take him and tbe two sureties, Wilkerson and Pettigrew, to see tbe clerk of tbe court to find out if tbe clerk would approve tbe bond with tbe signatures of Spencer, Wilkerson, and Pettigrew, so that defendant might be released until tbe next morning, at which time tbe defendant would secure additional signatures. That tbe said deputy, with tbe defendant T. 0. Bradsher and Wilkerson and Pettigrew, then went to tbe home of tbe clerk of tbe Superior Court. Tbe defendant T. C. Bradsher asked tbe clerk of tbe court if be would approve said bond, as it was then signed, until tbe next morning, so that be, tbe said Bradsher, would not have to go to jail that night. That tbe bond was then banded to tbe clerk, and be asked Wilkerson and Pettigrew if tbe signatures appearing thereon were their respective signatures, to which each replied that it was; that thereupon tbe clerk made tbe endorsement appearing on tbe bond; that tbe bond was banded back to tbe deputy sheriff, who asked tbe clerk, in tbe presence of Wilkerson and Pettigrew, if it would be all right to turn tbe defendant Bradsher loose, to which tbe clerk replied that it would be all right.

“8. That tbe bond of tbe defendant T. C. Bradsher was never at any time signed by him, but that tbe signatures of tbe three defendants, Spencer, Wilkerson, and Pettigrew, were all signed in tbe presence of T. C. Bradsher.

*404“9. That the deputy sheriffs, Clayton and Gentry, in the presence of Wilkerson and Pettigrew, released the prisoner, T. C. Bradsher, immediately after the foregoing conversation with the clerk, and he has not since made his appearance or been apprehended.

“10. That as to the defendant R. M. Spencer the court finds that he never appeared before the clerk to acknowledge said bond, and that the defendant T. 0. Bradsher was released without his knowledge or consent, and when he discovered his release on the following day the said T. C. Bradsher had fled.”

Upon the foregoing facts, the court being of the opinion that the State was entitled to recover of the defendants the penal sum of the bond, it was ordered and adjudged that the State of North Carolina have and recover of the defendants the sum of $2,500. Defendants, having excepted to foregoing judgment, appealed therefrom to the Supreme Court.

Attorney-General Brummitt and Assistant Attorney-General Nash for the State.

Nathan Lunsford and Luther M. Carlton for defendants.


Defendants, by their exception to the judgment herein rendered, present to this Court, for review, their contention that said judgment is erroneous, for that (1) the bail bond upon which it was rendered was not taken in open court; (2) the same was not signed by T. C. Bradsher, the principal; and (3) the appellants, R. M. Spencer and R. W. Wilkerson, signed the same upon conditions which were not complied with; and the appellant, W. J. Pettigrew, signed same in reliance upon the validity of the signatures of R. M. Spencer and R. W. Wilkerson. His Honor found the facts to be as contended by appellants, but was of the opinion that these facts did not, under the law, constitute a defense to the judgment nisi, and therefore made’the judgment absolute.

Defendant T. C. Bradsher, having been convicted of a misdemeanor, appealed from the judgment of the court. The court was required by statute to allow him bail, pending the appeal. C. S., 4653. But for this statute, the allowance of bail to defendant, after conviction, would have been in the sound discretion of the corft’t. After conviction, there is no constitutional right to bail. Article I, section 14 of the Constitution of North Carolina, in so far as it guarantees, by implication, the right to bail, does not apply. 3 R. C. L., p. 15; 6 C. J., 966. It was the duty of the court to allow bail to the defendant at the August Term, 1924, upon his conviction and appeal to the Supreme Court. The court ordered that defendant give a bail bond in the sum of $2,500, with two *405sureties, who should justify, and that the bond should be approved by the clerk of the court. The bond set out in the record, in the sum of $2,500, signed by two sureties, who justified and acknowledged execution of same before the clerk, who approved same, was filed in compliance with this order, and defendant released from custody pending his appeal.

1. Appellants contend, first, that the bail bond is void because not acknowledged in open court.

There is a technical distinction between a bail bond and a recognizance. This distinction is recognized by statute and in the practice in some jurisdictions, but in most cases it is not substantial, and is ordinarily not determinable. 3 R. C. L., 15. A recognizance is a debt of record, acknowledged before a court of competent jurisdiction, with condition to do some particular act. It need not be executed by the parties, but is simply acknowledged by them, with a minute of such acknowledgment entered upon the records of the court. S. v. Eure, 172 N. C., 874; S. v. White, 164 N. C., 408; S. v. Smith, 66 N. C., 620; S. v. Edney, 60 N. C., 471; 34 Cyc., 538. “In some respects a recognizance is very similar to a bail bond. It differs from a bail bond merely in the nature of the obligation created. A recognizance is an, acknowledgment of an existing debt; a bail bond, which is attested by the signature and seal óf the obligor, creates a new obligation.” 6 C. J., 892. This distinction does not seem to have been recognized in this State, for the obligation under each is held to be identical. A recognizance is in the nature of a conditional judgment, which may be discharged by performance of conditions, or enforced upon breach of conditions by a writ of scire facias. No action need be brought upon a recognizance, for it is an acknowledgment, solemnly entered upon the records of the court, of an existing debt. A bail bond, after it has been accepted by the court and filed, is regarded in this State as a recognizance. Both are conclusive, and neither can be attacked collaterally. S. v. Morgan, 136 N. C., 593.

A bail bond is in form similar to a recognizance. The only practical distinction seems to be that a bail bond need not be executed, whereas a recognizance must be acknowledged in open court. The parties to a bail bond are bound by their signatures; to a recognizance, by their acknowledgment; hence the requirement that a recognizance must be acknowledged in open court that a minute may be made as evidence of liability. The evidence that obligors on a bail bond are liable is their signatures, which may or may not be attested. When a bail bond, executed in accordance with the order of the court, and approved as required therein, is filed with the court, it becomes, in legal effect, for all purposes, a recognizance.

*406No distinction between a bail bond and a recognizance has been made or recognized in tbe practice in this State. Chief Justice Pearson, in S. v. Edney, 60 N. C., 471, says: “When a judge, in a proceeding initiated before him, adjudicates that the party is entitled to be discharged on giving hail, and fixes the amount, it has long been the practice in this State, if the party be not prepared with sureties, for the judge to authorize one or more justices of the peace, named by him, to take the recognizance; and recognizances, so taken, have heretofore, as far hack as the memory of the members of this Court extends, always been deemed valid. This practice has prevailed so long, and is so obviously for the ease of the citizen, that we would not be justified in now putting a stop to it unless satisfied that it is in violation of some important principle of law.” S. v. White, 164 N. C., 408; S. v. Smith, 66 N. C., 620. So that, although a recognizance, strictly speaking, is not valid unless acknowledged in open court, a bail bond, duly executed and acknowledged before some officer, or other person named by the judge, and filed in court, and accepted as a compliance with the order allowing hail, is in legal effect and for all purposes a recognizance, and may be enforced as such by the court.

2. Appellants further contend that the bail bond is void, and that they, as sureties, are not liable because same was not signed by T. C. Bradsher, the principal.

The bond was signed by the appellants in the presence of the principal, who delivered same to the clerk for his approval. The failure of the principal to sign same was an irregularity, hut does not affect the liability of the sureties who signed the bond. They are each liable, and, the court having accepted the bond without the signature of the principal, the liability of the sureties is not affected by this irregularity. The acknowledgment by the principal would be sufficient to make him liable on a recognizance, if such, acknowledgment had been made in open court. Whether the acknowledgment before the clerk, at his home, as permitted by the court in its order for the ease of the principal and his sureties, is as effectual to bind the principal as if it had been made in open court, is not presented on this record.

“Where a statute requires a hail bond for the release of a debtor to he executed by the debtor as principal and two others as sureties, the fact that it is executed by the sureties alone does not render it absolutely void, hut it is an obligation against them.” 45 L. R. A., 335, note. There is no statute in this State prescribing the form of a bail bond or how it shall he executed. The order of the court directed that defendant be released upon giving a hail bond, to he approved by the clerk. The clerk approved the bond tendered by appellants as a compliance with the order of the court. The bond filed in the record is the *407bond signed by appellants, and, baying been accepted by tbe court as tendered, it cannot now be attacked or impeached by appellants on tbe ground tbat it is void by reason of tbe failure of tbe principal to sign it.

3. Lastly, appellants contend tbat tbe bail bond is void, for tbe reason tbat tbe sureties, R. M. Spencer and R. W. Wilkerson, signed tbe same upon a conditional agreement witb tbe principal, assented to by tbe sheriff, as found by tbe judge, and tbat appellant, W. J. Pettigrew, signed in reliance upon tbe validity of these signatures. Appellants contend tbat as tbe conditions were not complied witb by tbe principal, neither of them is liable.

It is clear tbat no conditional agreement between tbe principal and bis sureties, who signed tbe bond, affecting their liability, can be a defense for tbe sureties, unless tbe obligee in tbe bond hád notice of such agreement. Tbe obligee in tbe bond is tbe State of North Carolina. Tbe terms and conditions of tbe bond were fixed by tbe court and could not be changed or altered, except by tbe court. Notice to tbe sheriff of tbe agreement as found by tbe judge was not notice to tbe obligee or to tbe court. Tbe sheriff was not tbe agent of tbe court, and bad no duty to perform witb respect to tbe bond. It was bis duty to bold tbe prisoner in custody until tbe order of tbe court bad been complied witb as to bail. There is no finding tbat tbe clerk bad notice of tbe conditional agreement. Tbe only duty imposed upon tbe clerk witb respect to tbe bond was to approve it as to form and as to sufficiency of sureties. His authority extended no further than necessary for tbe performance of this duty. If appellants contend tbat notice to tbe clerk was notice to tbe court, and therefore to tbe obligee, then it was incumbent upon appellants to offer evidence tbat tbe clerk bad notice of tbe agreement, or at least of sufficient facts to put him on inquiry. There is no finding by tbe court as to whether or not tbe clerk bad notice either of tbe agreement or of facts sufficient to put him on inquiry. Nor is there any exception tbat tbe court failed to find tbat tbe clerk bad notice.

Where tbe judge has, by an order made in open court, fixed and determined all tbe essential elements of a bail bond — tbe amount, tbe conditions and tbe number of sureties, and whether or not they shall justify— he may provide that the bond may be filed during recess or after the adjournment of court, provided it is approved as to form and as to sufficiency of sureties by one or more justices of the peace, named by him, in the order (S. v. Edney, 60 N. C., 464), or by the sheriff or any other person named by him. S. v. Houston, 74 N. C., 549; S. v. Jones, 88 N. C., 684; S. v. Jones, 100 N. C., 439. The officer or person, whose approval is required before the acceptance of the bond, has no duty or authority with respect to the bond, except that imposed or conferred on him by the order. No notice to such officer or person of any facts with *408respect to tbe execution of tbe bond, wbicb do not appear upon its face, will support a defense to a sci. fa. issued for tbe enforcement of tbe bond. When tbe bond bas been approved as required by tbe court, accepted and filed in tbe record, it is a recognizance — tbat is, a debt of record, conditioned only as appears in tbe bond, and may be dealt witb in all respects as a recognizance.

Tbe contentions of appellants as to tbe validity of tbe bond cannot be sustained. Tbe judgment is well supported, botb on principle and by tbe authorities, and is affirmed.

As t'o wbetber tbe facts found by tbe judge, now appearing in tbe record, entitle appellants to relief, in whole or in part, from tbe judgment rendered by bis Honor, and now affirmed by us, in accordance witb tbe law applicable to these facts, is not presented to this Court. A petition for such relief may be presented to tbe judge of tbe Superior Court presiding at some ensuing term of court for Person County, under C. S., 4588, notwithstanding tbat a final judgment bas been rendered. Although appellants, Wilkerson and Pettigrew, may be held to have waived a favorable consideration of tbe facts upon wbicb such relief may be sought by their conduct in tbe presence of tbe clerk, it would seem tbat appellant, R. M. Spencer, who was not present when tbe bond was delivered to tbe clerk, and bad no notice until tbe next day tbat prisoner bad been discharged, would receive such consideration. There is no error, in this record, of law or legal inference, and we must so hold. Tbe judgment is