People v. Cabannes , 20 Cal. 525 ( 1862 )

Cope, J. delivered the opinion of the Court—Field, C. J. concurring.

This is an action upon a paper purporting to be an appeal bond in a criminal case. The Criminal Practice Act does not require a bond on appeal, and we regard the paper in question as of .no force or effect. The provisions relied on to sustain it are those relating to bail, but an examination of these provisions will show that a different security is contemplated. The case was tried before a Justice of the Peace, and a judgment rendered imposing a fine, and in default of payment, imprisonment in the county jail. The bond recites a money judgment, and binds the sureties for its payment; setting forth substantially the conditions required in an undertaking on appeal to the County Court in civil cases. Section five hundred and fourteen of the act referred to provides that “ after conviction and upon an appeal, the defendant may be admitted to bail as follows. 1. If the appeal be from a judgment imposing a fine only on the recognizance of bail, that he will pay the same, or such part of it as the appellate Court may direct, if the judgment be affirmed or modified, or the appeal be dismissed. 2. If judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed.” This section prescribes the terms to be complied with in giving bail, and it is obvious that the second subdivision is the one to be considered in determining the effect of the bond. The Justice seems to have regarded the judgment as imposing a fine only, and the counsel for the people contends that this is the proper view to take of it. It is plain, however, that the imprisonment .is as much a part of the judgment as the fine; and to be relieved from that, an obligation to pay the fine was not necessary. In taking the bond, the Justice has exacted a security which the statute does not require; and such being the case, we are of opinion that no liability resulted from its execution.

The judgment is reversed, and the cause remanded.