258 P. 134 | Cal. Ct. App. | 1927
Action on a bail bond. Defendants appeal on the judgment-roll alone.
Appellants concede that all the facts are contained in the findings of the trial court. According to the findings, there was filed on December 9, 1921, in the superior court of the *405 state of California, in and for the county of Los Angeles, an indictment entitled "People of the State of California v. W.S.Kirby," being case No. 17,481, wherein the defendant was charged with the crime of bribery. On said day the court admitted said defendant to bail in the sum of ten thousand dollars and ordered that he be committed to the custody of the sheriff of Los Angeles County until he give such bail. On December 10th the defendant was duly arraigned on said charge. On the thirteenth day of December a demurrer to said indictment was duly filed, and on December 14th said demurrer was sustained. The court ordered the said cause to be resubmitted to the grand jury of the county of Los Angeles, and that the defendant be remanded to the custody of the sheriff. Thereafter, on the seventeenth day of December, the defendants above named made and executed the bail bond sued upon herein. On said date the said bail bond was duly approved by the court and filed with the county clerk. By reason of the execution and filing of said bail bond, defendant Kirby was released from the custody of the sheriff on December 17th. Thereafter, on December 27th, there was filed in said court an indictment No. 17,569, wherein the defendant Kirby was charged with the same offense set forth in said indictment No. 17,481, to wit, the crime of bribery. On January 4, 1922, said defendant Kirby being present in court, said court, with the consent of said defendant Kirby, made an order consolidating said case No. 17,481 and said case No. 17,569, and ordered that said bail bond theretofore given in case No. 17,481 should stand as the bail bond in the consolidated case No. 17,569. Said case was duly and regularly continued to January 16, 1922. Upon said day defendant Kirby was duly arraigned in said court upon the said indictment in case No. 17,569, and the trial thereon was set down for hearing on May 1, 1922. On said last-named date the trial was continued to May 18th, on which date said defendant Kirby failed to render himself amenable to the order and process of said court. Whereupon the court ordered the forfeiture of said bond, and said forfeiture was duly entered upon the minutes of the court. The defendants herein have failed and refused to pay to the county of Los Angeles the said sum of ten thousand dollars, or any part thereof. The bail bond executed by defendants was executed and filed by the defendants *406 in case No. 17,481 after the demurrer to the indictment in said case had been sustained, and before the new indictment, No. 17,569, had been returned by the grand jury. After said order of consolidation no further proceedings were had under case No. 17,481, and no indictment other than the said indictment No. 17,569 was ever returned against Kirby after the demurrer was sustained to said indictment No. 17,481. The trial court also found that said Kirby was being tried when he absented himself from court without leave on said new indictment No. 17,569, with which case No. 17,481 had been consolidated as aforesaid. Neither of the defendants herein knew of or consented to any order or proceeding in either case No. 17,481 or case No. 17,569 other than the approval of said bail bond and the release of defendant Kirby on said bond. The trial court did not at the time it sustained the demurrer to said indictment No. 17,481, nor at any time thereafter, allow an amendment thereto. Said indictment No. 17,569 was based solely on the same state of facts as indictment No. 17,481. The trial court rendered judgment for plaintiff in the sum of ten thousand dollars and costs.
[1] Appellants urge the following grounds for reversal: (1) The court erred in overruling defendants' demurrer herein; (2) That the judgment is not sustained by the facts and is against the law. In support thereof, appellants first advance the proposition that the sustaining of the demurrer to the first indictment without allowing an amendment determined proceedings and constituted a bar to further prosecution for said offense and effected an exoneration of bail. The only ruling of the trial court on the demurrer to that indictment was that the demurrer be sustained, and the court then and there ordered the said cause to be resubmitted to the grand jury. In our opinion the following provisions of the Penal Code are determinative of the foregoing proposition (italics ours):
"Sec.
"Sec. 1009. If the court does not permit the information to be amended, nor direct that an information be filed, or that thecase be resubmitted, as provided in the preceding section, the defendant, if in custody, must be discharged, or if admitted to bail, his bail exonerated, or if he has deposited money instead of bail, the money must be refunded to him.
"Sec. 1010. If the court directs that the case beresubmitted, the same proceedings must be had thereon as are prescribed in sections nine hundred and ninety-seven and nine hundred and ninety-eight.
"Sec. 997. The motion (to set aside indictment) must be heard at the time it is made, unless for cause the court postpones the hearing to another time. If the motion is denied, the defendant must immediately answer the indictment or information, either by demurring or pleading thereto. If the motion is granted, the court must order that the defendant, if in custody, be discharged therefrom; or, if admitted to bail, that his bail be exonerated; or, if he has deposited money instead of bail, that the same be refunded to him, unless it directs that the case be resubmittedto the same or another grand jury, or that an information be filed by the district attorney; provided, that after such order of resubmission the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases, if before indictment or information filed he has not been examined and committed by a magistrate.
"Sec.
Appellants' position is, in our opinion, untenable.
[2] Appellants claim that section
[3] Appellants' second proposition is that the original indictment being out and "the case at an end," no valid order of consolidation could be made. Having seen from the foregoing authorities that the case was not at an end when the court "ordered said case to be resubmitted to the grand jury," we believe the order of consolidation was valid, and that defendants were thereafter bound as sureties on the original bail bond. Section
In view of the foregoing, we are unable to see in what manner the bond failed to comply with the statute, as contended by appellants, since the bond substantially conformed to the requirements of section
[4] The fact that the preliminary recitals in the bond did not set forth all the facts, to wit, that the demurrer to the indictment referred to has been sustained, and that the case had been resubmitted to the grand jury, can be of no avail as a defense on the bond, as sufficient facts were given to identify the defendant and the action pending against him. The sureties cannot expect or require that every detail connected with the imprisonment of the defendant be set forth in the bond. The bond herein could not have designated the offense any more accurately than it did. It referred to indictment number 17,481, because that was the only indictment pending against defendant Kirby. The new indictment not having been returned and the old indictment not having been dismissed, it was a matter of record that the demurrer to that indictment had been sustained, and that the defendant was in custody to await the action of the grand jury to which the charge mentioned in said indictment number 17,481 had been referred. If the bond when executed was to refer to any indictment at all, it must of necessity have referred to indictment number 17,481, for the reason that the new indictment had not yet been returned. [5] The authorities do not require that the bail bond shall describe the offense with the same particularity as is required of the indictment. (People v.Barnes,
For the reasons stated the judgment is ordered affirmed.
Houser, Acting P.J., and York, J., concurred.