270 F. 263 | N.D. Ga. | 1921
This is a motion by sureties to remit in whole or in part the penalty incurred by forfeiture of a criminal recognizance adjudged by rule absolute at a prior term of the court. The facts appearing on the hearing are that the principal, S- B. Smith, made bond and forfeited it; the forfeiture being afterwards relieved. He then made the bond involved here, and forfeited that, so far as appears, willfully, but without the connivance of his sureties. They, on learning of the default, at their own expense, recaptured their principal, pending the rule nisi on the forfeiture, and delivered him to the deputy marshal, who took him before a United States com-' missioner, by whom he was again admitted to bail with another as surety; tire movants having no part in the making of this bond. They claim not to have been served with the rule nisi, but, if they were served,' affirm that they neglected to answer, because misled by the law of Georgia, which permits sureties to discharge forfeitures by surrendering their principal before rule absolute on payment of costs. The third bond of Smith was also forfeited, and he seems not to have been yet tried.
The law of Georgia is as above stated (Park’s Penal Code, § 960), and rules absolute granted after a surrender of the principal thereunder upon a failure to defend are, in practice, freely set aside as having been granted by mistake. Situations such as the present frequently occur in this court, and it seems desirable to approximate the Georgia practice so far as the laws of the United States permit. The objections here made are suggestive of three questions: First, may the penalty be remitted after rule absolute? Second, may it be remitted where the default of the principal was willful? And, third, ought there to be a favorable discretion exercised in this case?
*265 “When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no willful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced.”
The power here given is a discretion to remit in whole or in part under stated conditions a forfeiture which has really occurred. No doubt the proper time to apply for the remission is on the return of the rule nisi, if the facts exist and are known which are to be relied on, and a failure to apply promptly ought to be considered as an unfavorable circumstance, and if injury has occurred to the public interests by the delay, the application ought to be denied. But the judgment on the rule absolute necessarily involves only the well-known absolute defenses to the recognizance, such as impossibility of performance by the act of God or of the law, and these only are concluded by the judgment. U. S. v. McGlashen (C. C.) 66 Fed. 537. The provision of R. S. § 1020, is not of law, but of grace. An appeal thereunder may consist entirely with the correctness of the judgment absolute, which is not vacated or set aside, or in any wise collaterally attacked. Indeed, it must always stand as to costs; the penalty alone being capable of remission. The remission is but a release in whole or in part of an ascertained obligation to the United States, which was not imposed as a penalty or punishment by any public statute, the remission of which would appertain only to the executive, but arose in a private contract, though regulated by law, the equity of whose enforcement might well he entrusted to the judges.
No question, therefore, exists here of the power to set aside a judgment after the term, nor of conflict with the executive power of pardon. This power of remission came to us from the English law, as asserted by Chief Justice Marshall, in 1813, in United States v. Feely, Fed. Cas. No. 15,082, 1 Brock. 255, and was but redeclared by the statute of February 22, 1839, now R. S. § 1020. The time of its exercise was therein fixed by the broad expression, “whenever it appears to the court.” This might mean only “in all cases in which”; but its. natural meaning, and the only one given by Webster’s International Dictionary, is “at whatever time.” The relief may be had thereunder in the discretion of the court as well after as at the term of the rule absolute. U. S. v. Jenkins, 176 Fed. 672, 100 C. C. A. 224, 20 Ann. Cas. 1255; U. S. v. Traynor (D. C.) 173 Fed. 114.
The main ohject of the recognizance is not to enrich the treasury, or punish the surety, but to secure the attendance of the accused, without imposing on him the hardship, or on the public the expense, of his imprisonment. It would be a shortsighted policy that would make suretyship so hazardous that sureties could not'be obtained, and a wise policy to extend a benefit to the surety who, after the willful default of the principal, exerts himself and spends his money to recapture him. Such exertion under such a stimulus is more apt to be effective than the efforts of an officer. The decision in U. S. v. Fabata (D. C.) 253 Fed. 586, is not only opposed to the earlier case of United States v. Duncan, supra, but not well supported by the authority cited (United States v. Robinson, 158 Fed. 410, 85 C. C. A. 520), which reversed the action of the lower court in vacating and setting aside the judgment of forfeiture, including the costs, and thereby relieving the principal and the surety, notwithstanding the willful default of the former, and long after the term at which the judgment was rendered. The same court, in United States v. Jenkins, supra, later made the distinction between setting aside a judgment and remitting under R. S. § 1020, and in a learned decision set forth the liberal policy of this section. It is therefore now held that the willful default of the principal does not debar the surety, who is without willful default. The remission in such case, however, should leave the judgment of full force as to the principal and be conditioned on the payment of costs by the surety.
In the exercise of discretion, I adjudge that upon payment by the sureties of costs on the forfeiture and $100, the penalty and interest be remitted as to them; the judgment to stand as to the principal.