283 P. 345 | Cal. Ct. App. | 1929
On writ of review. In this proceeding the court is called upon to determine the validity of a summary judgment entered, upon forfeiture of a bail bond.
In the Municipal Court, one Armando was convicted of a misdemeanor, and was sentenced to serve a term of imprisonment. Thereupon the defendant appealed from the judgment and was admitted to bail and an undertaking of bail executed by petitioner was duly approved and filed. The bond, after the usual preliminary recitals, provides that the surety undertakes that the defendant "will appear and answer the charge above mentioned in whatever court it may be prosecuted, and shall, at all times render himself amenable to the orders and processes of any court in which the same may be prosecuted; and that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or that, in case the judgment be reversed and that the cause be remanded for a new trial, that he will appear in the court to which the cause may be remanded, and submit himself to the orders and processes thereof."
Upon the bail so given the defendant was released from custody. Thereafter the Superior Court reversed the judgment and remanded the cause for a new trial. The order of the Superior Court having been duly filed in the Municipal Court on December 13, 1928, the cause was called for resetting. At that time one W. Davis appeared for the defendant, and the case was continued to the next day. On December 14th, Davis again appearing for defendant, the case was set down to be tried on January 9, 1929. "Defendant ordered to appear. Thirty day period waived." When the case was called for trial on January 9th the defendant failed to appear. Thereupon the court declared the bail forfeited. Thereafter such proceedings were had *568 that summary judgment was entered against said surety, Pacific Indemnity Company, in the Superior Court. In the present proceeding by writ of review, the surety contends that the Superior Court, in entering such judgment, was without jurisdiction, and that the judgment should be declared null and void.
[1] Petitioner's first point is that the bond is void because the conditions of liability, as stated therein, go beyond the requirements of the statutory form of an appeal bond as contained in section
The bond now in question contained the agreement required by section
The headnote, as well as the text of section
[2] Next, petitioner contends that the valid terms of the bond were complied with when Armando appeared by attorney on the call of the case as hereinabove stated, on December 13th and December 14th, and that "the bond thereupon became functusofficio, and no forfeiture thereof or judgment thereon could be validly rendered." This point rests upon the further claim that in a misdemeanor case the defendant need not personally appear, and that his appearance by attorney, when the case is on trial, or preliminary thereto, is a sufficient compliance with the obligation of the bond. The Constitution declares that in criminal prosecutions the defendant has the right "to appear and defend, in person and with counsel." (Const., art. I, sec. 13.) It is provided by section
We are further of the opinion that the obligation of the bond was not discharged by reason of defendant's appearance by attorney at the call of the case on December 13th, or by his appearance by attorney on December 14th. *570 The defendant has never surrendered himself to the custody of the court. If he had left the state, as he may have done, there was no remaining power of the law to hold him, except through the surety on his bond. This control, we think, the law retains, until the defendant has personally submitted himself by an appearance in court.
[3] The next point requiring attention is that the judgment is void because the recitals of fact contained therein refer to entries in the docket of the Municipal Court, and not to the minute entries as required by section
The judgment is affirmed.
Houser, J., and York, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on January 6, 1930, and an application by petition to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 13, 1930.
All the Justices present concurred.