Commonwealth v. Jones , 90 Pa. 431 ( 1879 )

Mr. Justice Paxson

delivered the opinion of the court,

The Commonwealth takes this writ of certiorari to bring up for review the proceedings in a desertion case. Vincent K. Jones, the defendant, after a hearing in the Court of Quarter Sessions, upon the "charge of having neglected and refused to support his wife, was ordered to pay six dollars per week, “for the support of his wife and child, and. to give security to comply with this order by one or more sureties to the Commonwealth, to be approved by the court, .in the sum of $800; the said defendant to be committed to the county prison, there to remain until the order of the court is complied with.” Upon the same day, as appears by the record, the defendant entered the required security, and we take it for granted was discharged from arrest. Without referring to all the subsequent motions and orders in the case, it is sufficient to say, that on May 28th 1877, Phillip Miller, the surety, came into court and obtained a rule upon the Commonwealth to show cause why he should not be permitted to surrender the body of Vincent K. Jones to the sheriff of Lycoming county, upon paying up all arrearages to date, and be thereafter exonerated from all further liability on his said recognisance. This rule was subsequently made absolute, and the defendant re-arrested and sent to prison. It is this order of which the Commonwealth complains. The proceedings appear to have been under the Act of 18th April 1867, Pamph. L. 78.

The contention of the Commonwealth was that this was a case in which the surety could not discharge himself by a surrender of his principal; that his recognisance was analogous to bail for stay of execution, and that there was no relief from the condition of the recognisance but compliance with the order of the court. We are not considering the right of the surety to surrender his principal, and demand his own discharge, as in the case of ordinary bail in ci’iminal cases. It was held, in the Directors of the Poor v. Dungan, 14 P. F. Smith 402, that where in a ease of fornication and bastardy, the defendant had received the usual sentence, he had no right to be discharged, except upon compliance with the order for the support of the child, and that the surety stood in no better position. In such case the sentence was final, and after the term of court at which it had been imposed, could not be revoked nor modified, and the liability of the surety becomes fixed. But this’ record presents a question of the power of the court. The modification of. orders in desertion cases, whether the proceedings are under the general law or the Act of 1867, are in the discretion of the court, and the allowance may be increased or diminished from time to time, to suit the changed circumstances of the parties, or for sufficient reasons, may be revoked altogether, and such action is not reviewable here. The Act of Assembly gives no appeal, and the certiorari brings up nothing but the record. That fails to show why the court below made the order complained of. It was within the recognised power of the Quarter Sessions, and we must presume there was a ’sufficient reason for it. In any event the Commonwealth has not been injured. The arrearages were all paid up, and the defendant re-committed to prison, where he must remain until' he gives new bail, or is discharged by due course of law.

The proceedings are affirmed.