State v. Doyle

The opinion of the court was delivered by McEneiíy, J. Two indictments for larceny were presented against ■one John Richardson. The court granted an order fixing the amount of the bond in each case at $250. Richardson being unable to give this bond, on motion in open court, which does not appear upon the minutes, the bonds were reduced to $150 each, which Richardson, who was in custody, furnished, with Doyle as his surety. The bonds were lost or- stolen from the clerk’s office. On the theory that the recognizance of the accused had been forfeited, in pursuance of Sec. 1032 R. S., the District Attorney in the nature of a scire facias, proceeded against the surety on the bonds. There was a judgment of non-suit against the State, from which this appeal is taken. A motion is made to dismiss the appeal on the ground that the forfeiture of an appearance bond is a criminal procedure only where proceedings are conducted under Sec. 1032, R. S. The object and purpose of the proceedings is to have an execution issue on a judgment of forfeiture. At most the proceeding is only in *642 the nature of an original action. It springs directly from a criminal proceeding and is not to be tested by the rules applicable to civil actions. 37 An. 200; 38 An. 263, 542; State vs. Cornig, 41 An. (not yet reported). The motion to dismiss the appeal is denied.