119 Iowa 711 | Iowa | 1903
The defendant Walter Anderson was indicted for a felony, and his bail fixed at $1,500. Instead
The case chiefly relied upon by the appellee to sustain the order of the court below (State v. Owens, 112 Iowa, 407) is not controlling upon the questions here presented. Owens having been arrested for a misdemeanor, one Perry deposited money with the sheriff, in the nature of bail,, but without authority of law. Later an indictment was returned, and an order made fixing bail. Owens applied to the court for an order reducing the amount of bail required, and proposing, in lieu thereof, to deposit the money then in the sheriff’s hands. Accompanying the application was a written consent by Perry that the money be so used by Owens. The application was granted, and the money was deposited, and remained in the clerk’s hands until after Owens had been convicted and a fine assessed. Thereafter Perry undertook to surrender the defendant into custody, but did not take the proper statutory steps therefor. We there held that in view of the statute, and the order of the court made with Perry’s express consent, the money should be considered as having been deposited by the defendant, and subjected to the payment of the judgment against him. Here, however, we have a deposit made by a third person; we have also an appeal from the judgment of conviction to this court, with bail in the amount required; and we have the release and return of the money deposited as the statute directs shall be done under such circumstances. Code, section 5527. In this condition of affairs, the surety upon the appeal, following the strict form of law, surrenders the defendant to the sheriff in execution of the judgment, and demands the exoneration of his bond. This right is denied him unless he complies with a condition imposed by the court, requiring him to return or cause to be returned into court the sum of $476, which fund may again be released and refunded upon “going in good faith on appeal bond
But assuming that in the present instance the bond was given with no other purpose than to enable Walter IV Anderson to secure the release of the deposit, is the state in any manner “defrauded” by the subsequent surrender of the defendant? It is not questioned that the giving of
Upon the appeal of Walter F. Anderson, it is argued by him that in no event is a deposit made in lieu of bail liable to be subjected to the payment of the costs. The Owens Case does not involve this question. The order there appealed from applied the money to payment of the fine and costs; and on the submission in this court it was not urged, nor did we consider, whether payment of costs, as distinguished from the fine, could be thus enforced. JSfeither is such question so essential to a disposition of the present appeal as to now require us to decide it. The appearance of Walter F. Anderson in the proceeding in the district court was somewhat analogous to that of an intervener asking the restoration to him of the money in the hands of the clerk. Assuming (for the purposes of this case only) that, if no bail had been given on the appeal, this money could have been applied to the payment of costs, it is not open to question that, upon such bail being furnished, the defendant or his father was entitled to demand a release of the deposit. The order was* made accordingly, and Anderson, Sr., having received his money, his connection with the proceedings appears to have been terminated. At least, the record does not indicate that he was thereafter in court, or was brought within its jurisdiction by process or.notice of any kind. But waiving any question of jurisdiction, we see no way to uphold the judgment by which the order for the release of the deposit was set aside, and its return commanded. If the statute provides, as we have seen it does, that the giving of bail upon an appeal has the effect to release the deposit, it would not be a fraud for the father to interest himself in procuring the bail, in order that his money might be restored to his
The orders appealed from must be held to have been erroneous, and they are reversed.