9 P.2d 313 | Cal. Ct. App. | 1932
On this appeal neither the city prosecutor of the city of Los Angeles nor any other attorney qualified to represent the respondents herein has seen fit to file a brief on behalf of the respondents.
The facts appear to be that following the conviction of a defendant in a criminal action in the municipal court judgment was rendered to the effect that she pay a fine of $500, or that she serve fifty days in jail. Thereupon an *471
appeal from said judgment was taken by said defendant, to the superior court. For the purpose of effecting the release of the defendant pending appeal from the judgment, the appellant herein executed its undertaking in attempted compliance with the provisions of sections
[1] The principal point presented by appellant is to the effect that its undertaking on appeal from the criminal judgment rendered by the municipal court was void for the reason that included therein was a provision which purportedly created a liability against the bondsman not prescribed nor provided by statute. Referring to such undertaking, it is noticed that in substance the conditions thereof are that if on the appeal to the superior court the judgment of the municipal court should be affirmed, the defendant would "surrender herself in execution of the judgment, . . .; and we hereby further undertake with reference to that portion of said judgment imposing a fine, that said defendant will pay the fine imposed by said judgment, or such part of it as the appellate court may direct, if the judgment is affirmed or modified or the appeal is dismissed; or that, in case the judgment be reversed and the cause 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 process thereof; and that if he fails to perform either of these conditions, that we will pay to the People of the State of California the sum of Five Hundred dollars ($500.00), lawful money of the United States. If the forfeiture of this bond be ordered by the court, judgment may be summarily made and entered forthwith against the said Seaboard Surety Corporation of America, . . ."
That part of section
"If the offense is bailable, the defendant may be admitted to bail . . . after conviction, and upon an appeal:
"First. If the appeal is from a judgment imposing a fine only, on the undertaking of bail that he will pay the same, or such part of it as the appellate court may direct, if the judgment is affirmed or modified, or the appeal is dismissed.
"Second. If judgment of imprisonment has been given, 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 said cause may be remanded, and submit himself to the orders and process thereof."
With reference to the statutory condition of the undertaking, section
As hereinbefore has been indicated, as to that part of the undertaking which relates to that portion of the judgment of imprisonment of the defendant, appellant takes no exception; — its criticism being directed solely to the so-called alternative of the judgment which has to do with the fine imposed upon the defendant and as to which it is urged that because the undertaking in that regard purports to obligate the appellant herein to the performance of an act or duty not specified by the statute, the undertaking is void. Specifically, the point presented is that with reference to the fine imposed on the defendant, by the undertaking the bondsman promises that if as a result of the appeal the judgment be reversed and the cause remanded for a new trial the defendant will appear in the court to which the cause may be remanded and submit herself to the orders and processes thereof; — whereas by the terms of the statute no such promise is to be exacted either from the defendant in the action or from his bondsman.
In the case of People v. Cabannes,
After stating the substance of the statute to which reference has been had, the Supreme Court said:
". . . This section prescribes the terms to be complied with in giving bail, and it is obvious that the second subdivision is the one to be considered in determining the effect of the bond. The justice seems to have regarded the judgment as imposing a fine only, and the counsel for the People contends that this is the proper view to take of it. It is plain, however, that the imprisonment is as much a part of the judgment as the fine; and to be relieved from that, an obligation to pay the fine was notnecessary. In taking the bond, the justice has exacted asecurity which the statute does not require; and such being the case we are of opinion that no liability resulted from its execution."
The question in the case of People v. Barrett,
". . . That portion of the bond which refers to the payment ofthe fine may be disregarded. The fine, while fixed, was subject to payment at defendant's election by imprisonment. The secondsubdivision of section
Were it not for the authority of the decisions hereinbefore quoted, this court probably would be of the opinion that the provisions of the first subdivision, and not the second, *475
of section
But assuming the correctness of the declarations of law to which attention has been directed, it would seem to follow that the undertaking on appeal legally demandable of the defendant in the instant action did not require "an obligation to pay the fine", and that "in taking the bond (in regard to the fine) the justice has exacted a security which the statute does not require" (People v. Cabannes,
As hereinbefore stated, on affirmance of the judgment from which the appeal was taken and in connection with which the undertaking was given, the defendant was surrendered into court for the purpose of satisfying by imprisonment the alternative of the fine imposed by the trial court. The general rule is that upon surrender of the defendant his bail is exonerated. (Babb
v. Oakley Donaldson,
The judgment is reversed.
Conrey, P.J., and York, J., concurred. *476