TERRITORY OF OKLAHOMA v. REYNOLDS

TERRITORY OF OKLAHOMA v. REYNOLDS
1905 OK 22
82 P. 574
15 Okla. 185
Decided: 02/11/1905
Supreme Court of Oklahoma

Supreme Court of the Territory of Oklahoma.

TERRITORY ex rel. THACKER, Co. Atty.,
v.
REYNOLDS et al.

Feb. 11, 1905.

On Rehearing Sept. 5, 1905.

Syllabus by the Court.

1. Courts have inherent power to take bail or recognizance in a criminal case, but clerks have such power only when it is conferred upon them by statute.
2. Our statute does not authorize the clerk of the district court to take bail in a criminal case, and hence a bail bond taken by him is void.
Under the provisions of section 633 of our Code of Criminal Procedure (Wilson's Rev. & Ann. St. 1903, § 5769), bail is permitted to be taken only by the persons or courts authorized by law to arrest and imprison offenders.
In the absence of an express statute, the clerk of the district court is not authorized to take bail in a criminal case, and hence any bond taken by him in such case is void.
A bond which is void under the statute for want of authority to execute it cannot be enforced as common-law obligation.

Chas. M. Thacker, Co. Atty., in pro. per.

HAINER, J.

This is an action on a bail bond taken in a criminal action by the deputy clerk of the district court of Greer county. The facts in this case are identical with those in the case of Territory of Oklahoma ex rel. v. Allen et al. (No. 1,596, decided at this term of the court)

On Rehearing.

HAINER, J.

This was an action commenced in the probate court of Greer county by the county attorney, in the name of the territory, against the defendants in error, upon a written instrument purporting to be a bail or appearance bond. A demurrer was interposed to the petition, which was sustained by the court, and an exception noted and the case brought here for review.

The facts pleaded in this case are the same as in cause No. 1,595. The bond appears to have been taken before the deputy clerk of the district court, and hence the rule announced in the case of Territory ex rel. v. Woodring (cause No. 1,595, decided at this term of court)

The judgment of the probate court is therefore affirmed, at the cost of the plaintiff in error.

All the Justices concurring.