Show AGAINST THE BONDSMEN the suit against H S eldredge 4 and f armstrong in the territorial supreme court on june ath judge boreman delivered the opinion of the court in the suit for on the last bond given for the appearance of president geo Q cannon tas as follows the principal facts la ia the case are thesa the same as in case no heretofore decided at the last january term except as to the the alleged unlawful cohabitation and except that in this case two prosecutions instead of one are pleaded the two prosecutions thus pleaded in defense in this action are the indictment of the of march 1885 and the prosecution in which the undertaking sued on in case no was riven given both of those cases as in the present one were for unlawful tul cohabitation it is contended that unlawful chhabi tation is one continuous offense and that it cannot be divided into two or more offenses and that the present prosecution is not the one on which the accused could have been held it will be proper for us therefore first to examine whether the prosecution in which the undertaking herein sued on was given could or could not have been the proper one the supreme court ol of the united states has lately decided in the cabe of ez parte vs lorenzo snow not yet reported that unlawful cohabitation is a continuous offense yet that an indictment for that crime would not nob preclude another prosecution for the same offense committed at a time subsequent to the finding of such indictment the cohabitation in the present case is alleged alfted to have been committed at a time subsequent to the indictment of the of march 1885 and as a consequence that indictment would be no bar to the prosecution on which the undertaking herein sued on was given and cannot be pleaded as a defense in this action with the indictment of march 1885 eliminated from the case before us there remains for our consideration aide ration the question whether the other prosecution the one ou on which the undertaking sued on in case cadeno no was given Is a bar to the present action the com complaint p 1 at 0 for o r the arrest of the accas accused ed I 1 in n t that hat ca seand the com pluitt in the present presen t one were filed b afore the commissioner on the samo same day but the one represented by case no was prior in time the warrants were issued 0 a the same day the accused was br brought ought before the commissioner on the same day on both warrants and the u jader takings in both cases were on the same oame da day the e appellants the sureties ort on the undertaking u e king herein brein sued on clalia that it if they he had surrendered the fcc acc esedor us edor lor if he le had ad lapp Japp eared at the ti me ine appointed po he be would have been entitled to his As immediate discharge fro ra custody that since the institution a of this action the supreme court of the united united states tt ft tat there could be but one prosecution for this offense therefore the holding of the accused on the charge in this q a ise was unlawful aud and void and bence henc ehat what the lie holding of the sureties on the undertaking taking is unlawful and void toe be supreme court of the united states did not decide that there could be but one prosecution instituted nor could that idea have been intended to be conveyed it would have been contrary to the settled doctrine it Is not infrequent that a second or even a third indictment is found for the same offense fease of but on one alone is the party tried and the others are dismissed in all such cases there can be but one judgment of either conviction or acquittal and any such judgment can be pleaded in anta bar r of any other prosecution cation tor for the same offense but bat grose here ere the accused had not been convicted or acquitted on the charge pleaded at bar nor on any other charge for the offense of unlawful cohabitation habitat ioa the defense set up by the sureties is one that the accused himself could not have availed himself of in his defense on the charge upon which this case is based much less then it would seem could his sureties do so the doctrine of the supreme court of the united states as set forth in the case of ex parte lorenzo snow above referred to when applied to this case is that for the time between the findings of the indictment of the of march 1885 and the date of the complaints before the commies commissioner loner to wit the day of february 1886 there could be but one conviction conviction and ana not that the pea dency of one indictment or prosecution was a defense to a trial or conviction upon another tor for the same offense it is a well settled rule of law that the of one indictment is no bar to the trial or conviction on a second or subsequent indictment for the same offense 1 cb chit it ty tys 3 crim law corn com vs murray 11 0 cash ash whartons Wh artons onla grim crim PI II united states vs herbert 5 cranch C cr 87 kalloch vs superior court 56 cal 11 1 Arch bolds corn com pleadings the of the former prosecution that rep represented repented by case no mo would not preclude the prosecution in this case had the former prosecution been carried forward to trial and judgment it bould have been pleaded at the bar of the action in which the undertaking herein sued on was given and also of this action but as the accused did not appear andaas and vaa surrendered there could be no trial or judgment one prosecution for the time subsequent to the indictment of march 1885 as we have neen was proper and legal the prosecution in in which the undertaking on sued act on was given was subsequent to that indictment its being subsequent would not therefore it seems render it invalid or illegal it might be b e legal the of the former tion being no defence to this action we are not in a position to say that the present action Is illegal or ok unauthorized it the accuse accused d could have been prosecuted to judgment the bond to require him to appear was not invalid had the accused a appeared at the time appointed for the th e trial he could not have interposed any legal objection to proceeding to axial in the case in which the undertaking herein sued on was given nor could his sureties have made any such objection besides Beside sI had bad he appear appeared ei then a me new indictment might have beyn presented against him covering the whole time subsequent to the indictment of the of march 1885 and by the undertaking herein sued on he was bound to answer to it he would not have been entitled at least to be discharged ez ex debato debito jus ticie at that time the accused should have appeared at the time and his bis surety should have seen that he thus complied with tho thare re i quire ments of the undertaking they were to some extent his jailers jailors jai lors and could have arrested and restrained him to the extent necessary to produce duce hini him at the appointed time they failed to do their duty in not having in him in there and he failed to appear mis offis own will and aad the was duly forfeited they did not deny then than that he was liable to arrest nor did he deny it it A would seem that they are now es topped from denying that he vas liable to arrest upon the charge to answer which the undertaking herein sued on was given 2 L D raymond 1535 8 tend it was not for the accused nor for his sureties to ludge judge of the propriety or necessity of his bis attendance at the time when it was the olky obvious lous policy of the law to refer that question to tho the court I 1 whither he be was required to repair if to use the language of the supreme court of new jersey he be had appeared and there had bad been nothing against him it might have been sufficient lelen t cause for the court to have discharged his recognizance and given him leave to depart but was not la in itself such leave or discharge A recognizance in general binds to three particulars first to a appear pear to answer either to a specified c charge arge or to such matters as may b be 0 objected b ejected second to stand to and ab abide e t the h e judgment of the bourt and third ir d not to depart without the leave of the court and each of these particulars is cisly distinct and the party is not to depart until discharged although no indictment should be found against him by the grand jury although he be tried and a verdict of of acquittal rendered citation of authorities the same doctrine is laid down by the supreme court of maine which says that abe right to enforce a recognizance in ozithe m ki way depends upon the question orthe guilt or innocence of the me accused and that question can only be determined by trial upon the com faint that abe the defendant was aund to appear etca etc aud and ho he cau can not set up the repeal of the sta statute tate 11 authorities in pennsylvania it is held that in an action on a recognizance which originated before a justice of the peace the val validity of it cannot be questioned et either h er by y proof that it was illegally taken or that it was fraudulently taken citation of authorities it new york it is held that sureties on an undertaking of bail in an action against them alter after breach cap cannot question the liability of the principal I 1 to arrest or imprisonment that they cannot defend upon the ground of the illegality of the arrest they should have moved for exoneration at the proper time authorities various other states hold the same doctrine the supreme court of the united states has held in the case of beers vs haughton 9 pet 31 19 that where the accused would have have been eif entitled titled to his bis immediate diate discharge if he be had been surrendered at the appointed time the sureties could plead that fact in the bar and thereon be from their since the decision of the supreme court of the united states the circuit court of the united states 9 circuit judge field presiding held that whilst the accused was testing the validity of the indictment on the ground that it stated no offense he might be admitted to bail and if he delre were the recognizance which he would give would be valid and binding although the indictment itself should subsequently be adjudged to be void as charging no of tense lense authority the circuit court in the case last named said that the authority of the court to pass upon the validity of the action of the grand jury and over the defendant whilst this validity is under consideration is not an usurped antho authority th tho rity erity but is an authority essential to the exercise of the general jurisdiction with which the court is clothed over all offenses cognizable under the laws of the united states if the doctrine contended for by the tae appellants is correct then to use the abiel language n of judge field again in the he last fast named case it if the court should refuse refuge to look into the indictment and to pass upon its validity the judges would be justly lor jor neglect of duty but if the ourt detained the defendant in custody whilst considering sideri si ug its validity the judges would be liable to an action lor for false imprisonment if their ultimate decision be that the indictment was void at the time that the accused in the case before us was required to appear the question was under consideration in the courts although not in this case whether unlawful cohabitation was a continuous offense or whether it could be segregated into two or more offenses and it hid had not then been held that it was one offense only in this case the point had not even been raised nor was it ever raised by the accused at any time nor by the sureties themselves until I 1 this action on the undertaking was instituted the principal might have raised the question at the time of giving the bail but he made no such objection then nor did he make any such objection upon the trial not having appeared for trial the denial of his liability nabi lity to arrest was a L privilege which belonged to him to be made at the proper time and it did not belong to his sureties after the time had bad expired for an application for exoneration for the sureties and after tae bail had become fixed authorities in the case of beers vs haughton above referred to there was no question pending as to the validity of the charge or of the arrest there was no question of doubt to be settled but the accusers accuse ds right to a discharge from custody was absolute clear and unqualified had there been any such uh settled question as in the present case it is manifest that the court would have held that the accused was not entitled to his immediate discharge bad he been surrendered or had he be appeared at the proper time the doctrine of beers vs haughton is grounded upon the idea that the surrender of the accused would have been an idle ceremony because he would have been immediately released from custody and the bail could plead that as much as they could have pleaded the death of the accused duncan vs darst I 1 how but the death of the principal could not have hane been pleaded after the bail was fixed davidson vs taylor tayler 12 11 wheat and others js A so go we do not see that the doctrine of beers vs haughton is at all applicable to the case at bar for nothing whatever appears in this case to show that the accused would have been entitled to his immediate discharge if he had appeared or been surrendered on at t the e contrary he could have been held and tried pon the charge to answer which the undertaking herein sued on was given there can be no doubt of this fact the only ground that could have been urge urged against his is eing being s so held el and tried would have been that he had bad already rea been een trie tried an and convicted or gr acquitted qui ted upon abnot another r c charge arge for the sa same e 0 offense ense if sue such bad a been the fact then of course it could not have been beek pleaded or urged there is therefore no ground nor reason for saying that the undertaking herein sued on is a nullity the charge being valid the undertaking to answer thereto is valid the action upon the other undertaking the one sued on in case no above referred to has gone to judgment but such judgment was not paid nor otherwise discharged nor pleaded in defense to this action but that case is still contested and pending on appeal to the supreme court of the united states from the judgment therein with the present case in judgment hen two judgments will exist against the e b bail a i 0 of f t the h e accused c u s e on n t two w 0 s separate e p th a dio at t e c charges h r g e s f for caca the h e s same a e 0 offense ff e n s e it is an anomalous situation but one ot of the accused accusers accuse ds Is and his sureties own makin making for this double responsibility cje could leave have been avoided by the accused having been produced f in court at the appointed L time trial and judgment upon one of the charges or indictments would 1 thus have been rehashed the accused then could not have been called to trial upon the other and the undertaking on the charge not tried would never have been forfeited and the sureties thereon could never mever have been held liable it is not the province of the accused nor of his sureties to decide upon which charge he be should have been prosecuted or held to answer that was a matter for the government to decide As a consequence neither the accused nor his sureties can question the validity of either undertaking for his appearance at the appointed time the other question arising in Q the case arose in a case between the same parties decided at the ya last january ry term 0 of f this court and f for our views thereon we refer to the f opinion filed in that case we see no reason for holding the undertaking herein sued on to be invalid nor do j we see any error of law in the case the judgment of the district court is 18 therefore affirmed zane C J ji con curs henderson A J concurs if the sureties could plead j tion from an undertaking by |