State v. Simms, 240 N.C. 600 (1954)

Sept. 22, 1954 · Supreme Court of North Carolina

240 N.C. 600

STATE v. ELSIE TAYLOR SIMMS and STATE-WIDE BAIL, INC.

(Filed 22 September, 1954.)

Arrest and Bail § 8—

The subsequent arrest of defendant does not ipso facto discharge the original forfeiture of bail, but entitles the surety to move that the judgment absolute against it be modified.

Appeal by the surety on defendant’s appearance bond from Morris, J., May Term 1954, Wilsost.

Affirmed.

Criminal indictment, heard on motion to vacate or modify judgment absolute entered against the surety on defendant’s appearance bond.

A true bill of indictment charging the commission of a felony was returned against the defendant at the December 1953 Term of the Superior Court of Wilson County. She was apprehended and executed bond for her appearance at the February 1954 Term of court with State-Wide Bail, Inc. as surety. At said term judgment nisi was entered. Scire facias returnable on the first day of the May Term was served on the surety. Judgment absolute was entered 3 May 1954. The surety appeared and moved to vacate said judgment. The motion was denied and said surety appealed.

Charles L. Abernethy, Jr., for appellant.

Luke Lamb for appellee.

Pee Cubiam.

The facts in this case are substantially on all fours with the facts in S. v. Dew, ante, 595, except that the appellant alleges in its proposed amendment to its answer that this defendant has been apprehended and was returned to the Wilson County jail on 16 April 1954. What is said in the opinion in that ease is controlling here.

While the subsequent arrest of the defendant does not, ipso facto, discharge the original forfeiture, Tar Heel Bond Co. v. Krider, 218 N.C. 361, 11 S.E. 2d 291; S. v. Brown, 218 N.C. 368, 11 S.E. 2d 294, the door is still open to the defendant to appeal to the court to modify the judgment absolute for the reason the defendant has been apprehended and surrendered to the Wilson County authorities.

The judgment of the court below is

Affirmed.