225 P. 35 | Cal. Ct. App. | 1924
Application for writ of certiorari.
From the petition it appears that on or about April 22, 1923, one Charles Johnson was arrested in San Francisco charged with the commission of a certain misdemeanor. Thereafter and on the following day he was admitted to bail in the sum of one hundred dollars and petitioner herein furnished and deposited this amount with the bond and warrant clerk of such city. On April 25th the case was called for trial and defendant appeared with his counsel and answered ready. The matter was continued on such day, and thereafter and from time to time until the eighteenth day of May, 1923, when, the defendant having failed to appear, the police judge, over the objection of petitioner herein, declared the bail forfeited and ordered that a bench-warrant issue for the arrest of the defendant.
It is claimed that the judge exceeded his jurisdiction and authority in ordering the bail so furnished by the petitioner to be forfeited, for the reason that he was defendant's counsel and that he represented him when the case was called for trial, and, the charge being a misdemeanor, it was not incumbent upon defendant to be personally present, the court having full authority in such case to proceed to trial without him. The sole question, therefore, presented by the petition is whether the record shows a breach of any of the conditions of the bail justifying the order forfeiting the same.
Section
Section 1148 of the same code declares that if the defendant is charged with a felony he must, before the verdict is received, appear in person; if for a misdemeanor a verdict may be rendered in his absence. Section 1193 permits judgment to be pronounced against him in his absence.
In construing these sections our supreme court has held that the mere absence of a defendant at the trial charged with a misdemeanor does not constitute a breach of the bail bond, and that a court has no power to enter a default thereon and declare the recognizance forfeited, as such a defendant so charged is not required under the provisions quoted to be present at the trial (People v. Ebner,
In reaching this conclusion the supreme court in the Budd case had under consideration section
For the reasons given the writ is denied and the writ heretofore issued is discharged.
*69St. Sure, J., concurred.