240 F. 241 | 6th Cir. | 1917
Lead Opinion
(after stating the facts as above). That a clerk or his deputy has no power to bail offenders, and that the power is judicial in nature, and cannot be delegated, are propositions not disputed in this case, and need no discussion, for the offender was.not bailed by the deputy clerk, but was bailed by the judge himself. If this conclusion is not correct, yet the surety is not in a -position to deny the propriety of the proceedings through which the offender was released from custody.
This is a bail bond, not a recognizance. In some of the cases the terms are used interchangeably. Blackstone defines a recognizance to- be “an obligation of record, which a man enters into before some court of record or magistrate duly authorized, with condition to do some particular act, as to appear at the assizes, to keep the peace, to pay a debt) or the like” (2 Black. Comm. 341); and it is evidenced by a memorandum on the minutes, to which the signature of the principal and surety are not necessary.
“No law of which we are aware requires the sureties to appear personally before the judge, unless they are to become bound by a technical recognizance, such as is entered into in open court, and spread upon the journal of its proceedings. When a bail bond is taken, as in the present case, and the obligation assumed by the sureties is evidenced by their signature to the bond, and not by the court record, it is not essential that they should appear personally before the court or judge.”
Nevertheless, the judge has duties to perform before the offender can be said to be properly bailed. It was said by Chief Judge Cranch, in United States v. Lawrence, 4 Cranch, C. C. 518, 519, Fed. Cas. No. 15,577, that the discretion of the magistrate in taking .bail is “to be guided by the compound consideration of the ability of the prisoner to give bail, and the atrocity of the offense.” These duties are elaborated to unnecessary detail in some of the cases, but we agree with the judges of the Circuit Court of Appeals in Hunt’s Case that the judge is only required to determine whether the offense charged is bailable, fix the penalty of the bond, and approve the surety, or see that such approval is provided for.
To decide rightly he must have the necessary facts before him. Just what tire deputy clerk said to Judge McCall does not clearly appear. What information he himself had, other than that which the clerk told him, is not disclosed; but we may justly assume he knew the accused was indicted with others for violation of the postal laws, and that the accused and Mr. Ewing, his attorney, were waiting in the clerk’s office to execute a bail bond with the attorney as surety. The judge fixed the penalty of the bond. He knew the case was one in which bail might be taken, and the proposed surety was well known to him.
So far as appears, the judge did not, in so many words, direct the clerk to prepare the bond and accept it When executed. That was a matter of course. What was done was the same as if the judge, advised as to the nature of the case and financial responsibility of the surety, had directed the clerk to accept the bond from the principal and his surety at the penalty fixed, duly conditioned for the defendant’s
The only substantial difference between that case and this is that there the judge wrote a note to the clerk directing him to approve the “recognizance” (it was a bail bond) for the offender in a sum named, “with two sureties in addition to the principal, the same to be sufficient and approved by you.” Hunt v. United States, 61 Fed. 799, 10 C. C. A. 74. The note did not go on the minutes, but was on file with the bond in the clerk’s office.
It has been assumed that the phrase “agreeably to the usual mode of process against offenders in such state,” found in Revised Statutes, § 1014, regulates and controls the steps to be taken upon bailing one who has been indicted by a grand jury of the United States, as well as those preliminary examinations to which parts of the section are particularly appropriate. It does not seem necessary to decide, in this case, how far the statutes and practice of Tennessee may determine the validity of this bond, since we think its validity sufficiently rests upon other grounds; but, as it has been attacked upon the theory that it did not comply with the Tennessee “mode of process,” and is for that reason invalid, it is appropriate that this attack be met and considered.
“Every bond or recognizance deemed good and valid as a common law bond, shall be a good' statutory bond, and no defense to any action or scire facias, prosecuted to enforce such bond or recognizance, shall be available, unless it would be a legal and valid defense to a suit at common law upon the same.”
The Supreme Court of Tennessee felt constrained, notwithstanding this statute, to hold, under their former ruling in State v. Arledge, 2 Sneed (Tenn.) 229, that, as the writ made no reference to the manner of taking the bond or its return, it was bad (State v. Patterson, 7 Baxt. [66 Tenn.] 246); and in State v. Johnson, 6 Baxt. (65 Tenn.) 198, no bond or recognizance being set out, and nothing from which the liability of the defendant arose as being of record appeared on the face of the writ, it was held to be insufficient by reason of former decisions, notwithstanding section 7119. But the court were of opinion that a declaration on a bond at common law for the appearance of a party, in court should show that the party had made the bond and the terms of'his obligation, so that on its face the court could say that it had been broken, and, without that, it was demurrable.
This bond contains every element of a common-law bond. It need not be taken in open court, and in other respects it satisfies the Tennessee statutes.
Whether or not at common law amendment might ordinarily be permitted to show any other facts than those appearing of record, it would seem that it could be done for the purpose of showing a custom of taking a recognizance out of court, which must be alleged.
It was shown by Judge McCall that the method of procedure in taking this bond in this form has been the practice in his court during the many years of his service, and Judge Hammond’s decision in Evans’ Case, heretofore cited, was in 1880. It may be added that this form of bond and certificate are identical with die bail bond and the clerk’s certificate thereto taken in the District Court for the Southern District of Ohio from time immemorial, with nothing on the minutes to show that the judge had acted in the matter. However, while tire letting to bail by the judge sufficiently appears in this case, and it might be possible to make the necessary showing in any case, yet we all think a practice should not be approved which allows that important fact to rest on parol evidence. It is a simple matter, and will save all doubt, for the judge to indorse upon the indictment or bench warrant:
“Let tire respondent be held to bail in the sum of $-, with surety or sureties to be approved by the court, judge, or clerh.”
We hold, therefore, that under the federal practice and without regard to the statutes of Tennessee, to be considered, this writ could have been amended in the District Court, so as to supply the missing jurisdictional fact, by showing the circumstances under which the bond was taken. It will be seen by reference to Insley v. United States, 150 U. S. 512, 14 Sup. Ct. 158, 37 F. Ed. 1163, that the District Court having jurisdiction of forfeitures and penalties and to issue scire facias, and that writ having issued on a forfeited bail bond, the cause could proceed, although the state statute involved provided for the enforcement of such bonds only by civil action.
By these acts, and section 7119, heretofore referred to, held by the Supreme Court of Tennessee to abolish the distinction between statutory and common-law bonds and recognizances and to provide that the latter should be equivalent to the former (State v. Quinby, 5 Sneed, 419, and Brewer v. State, 74 Tenn. 198, 204), the Legislature of Tennessee have sought, and we think successfully, to do away with technical defenses through which sureties on recognizances and on bail bonds have sometimes been able to escape the just penalty for the breach of obligations to which they had voluntarily become parties, and have intended that a scire facias may be treated as a declaration at common law. and amended according to the justice of the case to show such pertinent facts as the proof establishes.
“Nothing in this agreement is intended to in any way conflict with or contradict the testimony of any witness, as shown in this bill of exceptions. * * * ”
Counsel now say that proof without allegations will not support a^ judgment. If he objected seasonably, the court then, no doubt, would have permitted an amendment to the writ; but, in any event, it is now too late. Roberts v. Graham, 6 Wall. 578, 581, 18 L. Ed. 791; Railroad v. O’Reilly, 158 U. S. 334, 335, 15 Sup. Ct. 830, 39 L. Ed. 1006.
We have no doubt of the legality of the proceedings through which
The custody of the offender was surrendered by the marshal to the surety upon his agreement po produce tire offender according to the terms of the bond. The dominion the surety acquired was in continuance of the original imprisonment.
“As a matter of law it was impossible for the district judge to have taken the bond, because the accused was never in his presence and the law requires that the accused must be present at every step of his trial, and he cannot waive that right and the record must show that fact affirmatively.”
There is nothing in section 9 of the Declaration of Rights in the Constitution of Tennessee conferring the right on one charged with crime to be in open court or in the presence of the judge when giving a bail bond. It is an ancient rule that it is not in the power of the accused, charged with the commission of a felony, to waive, either himself or by his counsel, the right to be personally present during the trial (Lewis v. United States, 146 U. S. 370, 13 Sup. Ct. 136, 36 L. Ed. 1011); but, giving a bail bond for appearance at the trial is not a part of the trial, and no case has' been cited, and we know of none, which
Hutchinson v. State, 3 Cold. (Tenn.) 95, was a case in which the defendant, convicted of robbery in a circuit court in Tennessee, appealed to the Supreme Court. He secured his release on a bond conditioned for his appearance in the circuit court at the next term after the decision of the appeal by the Supreme Court. It was held that the circuit court ought to have required the defendant to enter into, a recognizance for his appearance before the Supreme Court, and that for felonies, as contradistinguished from misdemeanors, the circuit judge, under the statutes of Tennessee, could not admit the accused to bail to appear in the circuit court after the decision of his appeal. The court, following Andrews v. State, 2 Sneed (Tenn.) 550 — that the accused “must be present during the trial, and until the final judgment” — was of opinion that on such a bond, the accused being absent, the court had no jurisdiction over his person and could not render .any judgment on the appeal, but that the court could (and did) order a capias to issue, to the end that the accused might be brought before the court. Clearly the surety can take nothing from that decision.
In Hopkins v. State, 10 Tea (78 Tenn.) 204, the accused, indicted for murder, petitioned the court for a change of venue, which was granted in the absence of the accused. The court were of opinion that in such a matter the accused could, if within the custody and control of the court, waive his right to be present since “that right in all preliminary steps is personal to the accused and may be waived.” See 12 Cyc. 526, note 31.
In Alexander v. United States, 138 U. S. 353, 355, 11 Sup. Ct. 350, 351 (34 L. Ed. 954), error intervened, as afterwards held in another case (Lewis v. United States, 146 U. S. 370, 13 Sup. Ct. 136, 36 L. Ed. 1011, on substantially the same facts), in impaneling a jury in a trial for murder. The error was made the ground of a motion for a new trial, but the court, speaking through Mr. Justice Brown, held that the question was raised too late, saying:
“It is the duty of counsel seasonably to call the attention of the court to any error in impaneling the jury, in admitting testimony, or in any other proceeding during the trial by which his rights are prejudiced, and in case of an adverse ruling to note an exception.”
In Givens v. State, 103 Tenn. 648, 55 S. W. 1107, in which the accused was indicted for murder and about to be tried, one Aslinger, after being accepted as a juror, was discharged by the court upon discovery that he was neither a householder nor a freeholder. The defendant was temporarily absent. His counsel was present and fully informed, and, if not actually consenting, at least made no objection.
It is true that in Lewis v. United States, 146 U. S. 371, at 372, 13 Sup. Ct. 136, at 137 (36 L. Ed. 1011), it was said by Mr. Justice Shiras:
“A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall he done in the absence of the prisoner”
—yet it will be seen from the context that in making this statement the learned justice had in mind the requirement that the accused must be present during his trial. But, whatever he meant, the point decided in the case was that a prisoner on trial for a felony had not the power, himself or by his counsel, to waive the right to be personally present at his trial, which includes the steps taken in impaneling the jury. ,
We hold, therefore, that the giving of the bond was not a part of, or a step in, the trial, but is only preliminary thereto, is a privilege to be availed of by the accus'ed, if hfe-desires to avail himself of it and is able to do so, and can be waived by him at his election; further, that it is now1 too late for the question to be raised.
Whether or not, on principles of estoppel, applied also to this phase of the case, the surety could be held, need not be decided; for, under the terms of the bond as given, the responsibility of the surety was not brought to an end and completed by the conviction itself. The Supreme Court of Tennessee (Suggs v. State, 129 Tenn. 498, 500, 167 S. W. 122, 123) discuss the -difference between the rights and obligations of the surety after conviction, but before sentence, and after sentence, and say:
*255 "‘Where a bail bond stipulates that the principal is not to depart without leave of the court, the sureties are not exonerated by the mere conviction of the principal. * * * But when a conviction is followed by a pronouncement of" sentence, such pronouncement, it has been held, has the legal effect of a direction to the sheriff to hold the convicted defendant in custody, and operates to exonerate the sureties.”
A number of cases are cited in support of each of these conclusions. No case has been cited, and we have found none, in which, upon a mere conviction, without sentence pronounced thereupon, it has been held that the custody of the accused passed from the surety to the officer who, under the law, would take the accused into his custody. If the case is to be assimilated to the mode of proceeding in Tennessee, all debate on the subject is foreclosed by the statute of Tennesse of 1903 (Acts 1903, c. 99; Shannon’s Supp. to Code, 852), which provides that, when such a bond as this,has been executed, it—
“shall be valid and binding upon the defendant and his sureties thereon, for the defendant’s personal appearance before the court from term to term until the case is finally terminated or stricken from the docket, and the defendant discharged by the court; and the defendant shall not be required to renew said bond or recognizance, unless ordered to do so by the court because of the insufficiency of said bond in amount or the insolvency of the samé or on forfeiture of bail, or for other good and sufficient causes; provided that the sureties on said bond may surrender the prisoner and be released on said bond as now provided.”
Of course, that provision of the statute is as much a part of the bond as if written into it. If it were so written, however, it would not add to the express agreement of this bond that the accused should attend “until discharged” and “abide the decision of the said court in the premises.” The surety, by failing to produce the accused, must pay the penalty for his default.
The judgment of the District Court is affirmed, at the costs of the plaintiff in error. '
Reese v. United States, 9 Wall. 13, 21, 19 L. Ed. 541; United States v. Zarafonitis (C. C. A. 8) 150 Fed. 97, 99, 80 C. C. A. 51, 10 Ann. Cas. 290; United States v. Van Fossen, Fed. Cas. No. 16,607; United States v. Insley (C. C.) 49 Fed. 776, 778; Dennard v. State, 2 Ga. 137; Bothomly v. Fairfax, 1 P. Wms. 334; State v. Mayson, 2 Nott & McC. (S. C.) *425.
Fanshaw v. Morrison, 2 Ld. Raym. 1138, 1141; 8 Viner’s Abridg. (2d Ed.) “Recog.” 4, p. 163.; United States v. Evans (C. C.) 2 Fed. 147, 152; “for if a man will voluntarily enter into it, a judge has power to take it.” Holt, C. J., Anonymous, Case 76, 11 Mod. *53.
State v. Gorley, 2 Iowa, 52, 56; State v. Glass, 9 Iowa, 325; State v. Welch. 59 N. H. 134; United States v. Insley, 54 Fed. 221, 224, 4 C. C. A. 296 (C. C. A. 8).
Commonwealth v. Green, 12 Mass. 1, 2; People v. Van Eps, 4 Wend. (N. Y.) 387; Commonwealth v. McNeill, 19 Pick. (Mass.) 127, 138; State v. Kinne, 39 N. H. 129, 135.
Taylor v. Taintor, 16 Wall. 366, 371, 21 L. Ed. 287. See also Keese v. United States, 9 Wall. 13, 21, 19 L. Ed. 541, and Cosgrove v. Winney, 174 U. S. 64, 68, 19 Sup. Ct. 598, 43 L. Ed. 897.
United States v. Evans (C. C.) 2 Fed. 147, 151; Hunt v. United States, 61 Fed. 795, 800, 10 C. C. A. 74, et seq.; Id.; 63 Fed. 568, 570, 11 C. C. A. 340; McLean v. State, 8 Heisk. (Tenn.) 22, 247, 248; Jones v. Gordon, 82 Ga. 570, 571, 9 S. E. 782.
Lewis v. United States, 143 U. S. 370, 13 Sup. Ct. 136, 36 L. Ed. 1011; Hopt v. Utah, 110 U. S. 578, 4 Sup. Ct. 202, 28 L. Ed. 262; Andrews v. State, 2 Sneed (Tenn.) 550; Witt v. State, 5 Cold. (Tenn.) 11; Clark v. State, 4 Humph. 253, 254; Richards v. State, 91 Tenn. 723, 20 S. W. 533, 30 Am. St. Rep. 907; State v. Mannion, 19 Utah, 505, 57 Pac. 542, 45 L. R. A. 638, 75 Am. St. Rep. 753.
Rehearing
On Petition for Rehearing.
The petition for rehearing filed in this case will be denied. The ultimate conclusions reached, as appear in the opinion heretofore filed, were that the offender was properly bailed by' the judge, in that the facts warranted the finding that the judge himself was advised of the nature of the offense, that he fixed the amount of the bond and approved the surety, and that in any event the surety is not in a position to deny that the offender was properly bailed. We think these conclusions are right.
We take the opportunity, however, of saying that it was not necessary in the disposition of this case for us to go so far as to express an agreement with that part of the opinion of the Circuit Court of Appeals in the Eighth Circuit in the case of Hunt v. United States, 61 Fed. 795, 10 C. C. A. 74, and 63 Fed. 568, 11 C. C. A. 340, which in effect holds that a bail bond is sufficiently approved when, after the judge has found the offense to be bailable and has fixed the amount of the bond, the clerk approves the sureties upon direction of the judge to do so. The statement, therefore,' of agreement with that
Necessarily the suggestion in the opinion of a course' of conduct in bailing offenders to be followed by the District Judges in this circuit may be expunged from the opinion, and also the statement of the practice in the District Court for the Southern District of Ohio, for the reason that the statement was inadvertently made.