147 Minn. 272 | Minn. | 1920
One Edward R. Cooper was indicted by the grand jury of St. Louis county. On June 25, 1918, after arraignment and a plea of not guilty, he was released from custody upon executing a bail bond with defendant as surety. The next term of court was held the following September, on the ninth of which he was present in court. Between the June, 1918, and the January, 1919, terms, there seem to be no record entries
The assignments of error are grouped under three headings. The first, that Cooper was not in default when the bond was forfeited, seems to be rested on the proposition that since no day was fixed for Cooper’s appearance, when in court, no valid order for his appearance could thereafter be made in his absence. The conditions of the bond answer the contention. After reciting that Cooper had been indicted by the grand jury of St. Louis county for the crime of grand larceny, had entered a plea of not guilty, and that the cause is now at issue in said court, pending trial, it reads:
“Now, Therefore, the condition of this recognizance is such that if the above-named E. B. Cooper, principal, shall personally appear and answer to said indictment, at the court house in the city of Duluth, in said county and state, whenever the court shall order such appearance, and whenever the said [cause] shall be called for trial, and shall abide the order of the court therein, and shall also continuously from day to day 'and term to term thereafter appear and answer to said indictment in said court, or in any court where said cause may be sent for trial; and shall at all times, until the final decree, sentence or order of the court herein, obey and abide by all orders, decrees and sentences of the above entitled court, or any court wherein said cause may be pending, and not depart without leave, or until discharged by the court having jurisdiction of said cause, then this recognizance to be void, otherwise to remain in full force and effect.”
The bond is not for an appearance on a particular day. It is a continuing bond pending trial. It requires Cooper to appear for such trial
Speaking of sureties on a similar bail bond the court, in State v. Breen, 6 S. D. 537, 62 N. W. 135, said: “They were, in effect, his jailers, and so remained from term to term, as continuances of the case were obtained, and under their obligation became liable when he appeared not.” To the same effect is St. Louis v. Henning, 235 Mo. 44, 138 S. W. 5, where a sentence from Hawkin’s Pleas of the Crown is quoted with approbation. A short pithy decision in State v. Baldwin, 78 Iowa, 737, 36 N. W. 908, seems to be conclusive against defendant. It is there held that “the principal in a bail bond may be required to appear at any term subsequent to the term at which he is required by the language of the bond to appear, without notice to him or his sureties,” also that “it will be presumed, if the forfeiture was taken at a subsequent term, that the cause was continued' by operation of law to the term when default was taken,” and further that “the order of forfeiture is conclusive, and the sureties cannot call in question the facts upon which it is based.”
In this case both Cooper’s attorney and defendant were notified that the cause would be called for trial at the September, 1919, general term, and to have Cooper present at the first day of the term. Defendant neither produced Cooper nor made any appearance to object to the forfeiture. See also State v. Ballantine, 106 Mo. App. 190, 80 S. W. 317; State v. Williams, 84 S. C. 21, 65 S. E. 982; People v. Hanaw, 106 Mich. 421, 64 N. W. 328; Hortsell v. State, 45 Ark. 59; State v. Holt, 145 N. C. 450, 59 S. E. 64. The court in Gallagher v. People, 91 Ill. 590, said of a bail bond to appear on a day certain then and there to answer “and abide the order of said court,” that “the language of this recognizance is sufficiently broad to require the appearance of the ac
Apart from the express language of the bond, G. S. 1913, § 9091, so clearly malees ineffective every defense here sought to be interposed as to preclude further discussion. It reads:
"No action brought on any recognizance shall be barred or defeated, nor judgment thereon arrested, by reason of any neglect or omission to note or record the default of any principal or surety at the term when it occurs, or by reason of any defect in the form of the recognizance, if it shall sufficiently appear from the tenor thereof at what court the party or witness was bound to appear, and that the court or magistrate before whom it was taken was authorized by law to require and take it.”
Therefore, we think, no advantage can be taken by defendant because of the failure of the court records to show that the cause was continued over terms, for an omission to note a default, when it occurs, does not defeat a recovery on the bond.
When Cooper appeared in court September 9, 1918, he had entered the military service.' The record does not show when he enlisted. Just previous to the November, 1918, term, the county attorney stipulated that the cause be continued from that term to the January, 1919, term. But the court in substance finds that there was an oral agreement made between the state and defendant, through their respective attorneys, that the accused need not be present in court from day to day or term to term until his discharge from military service, and the cause should be continued from term to term until such time, which agreement was made without the knowledge or consent of this defendant and without the knowledge or approval of the court. Cooper was discharged in July, 1919. Defendant claims to be released from the bond, because of the action of the county attorney.
A similar claim was made by a defendant surety in State v. Benzoin, 79 Iowa, 467, 44 N. W. 709, and disposed of in this fashion: "It is alleged that the cause was continued without defendant’s consent, but
We think the foregoing is applicable here. Defendant undertook to have Cooper present, not only at each term of court, but on each day of the term. Had defendant observed this condition it would have had knowledge of what was being done or omitted to be done in the disposition of Cooper’s cause. The stipulation was on file. If its terms were not to defendant’s liking or if any other step taken in the cause made its position as surety undesirable, it could at once surrender Cooper under G-. S. 1913, § 9094. The stipulation, even if it be conceded effective without the action of the court, does not contravene the conditions of the bond and cannot be held to release the surety.
The views above expressed lead to an affirmance, and it is not necessary to inquire at length as to the authority of the county attorney to make the oral agreement he did make, or the effect thereof upon the surety. It may be stated generally that under our practice the county attorney’s conduct of criminal prosecutions is under the control of the court. Continuances, nolle prosequis, and dismissals of causes must be sanctioned by the court. Q. S. 1913, §§ 8510, 8511, 9220. The agreement between the attorneys referred to in the findings not having the approval of the court, should therefore have little weight. The action of the
Counsel for defendant places great reliance on Reese v. United States, 9 Wall. 13, 19 L. ed. 541, but it is to be noted that there the stipulation to continue the cause until the determination of certain civil actions was entered and granted by an order of court. Here the oral arrangement was without the knowledge or consent of the court. In Tanquary v. People, 25 Colo. App. 531, 139 Pac. 1118, the demurrer admitted that the cause had been abandoned by the state as averred in the answer and that that fact was communicated to the accused and his surety, and the court held this showed the bond to have served its purpose and the principal and sureties entitled to a formal discharge.
In view of the foregoing conclusions the contention that the county ■ attorney had authority to make the agreement referred to, and that
The order is offirmed.