| Iowa | Apr 3, 1923
-Elmer Hamilton was tried in the district court of Page County, upon an indictment charging him with the crime of robbery, and on March 24, 1922, a verdict of guilty was returned against him by the jury. He was released on a bond in the sum of $8,000, signed by appellants as sureties. The defendant failed to appear on April 3d, the date fixed for pronouncing judgment, and an order forfeiting the bond was entered by the court. A bench warrant was issued, and delivered to the sheriff, who apprehended the defendant near the Mexican line in Texas, and returned him to Page County for sentence. Judgment ordering him confined in the penitentiary at Fort Madison for an indeterminate term not exceeding 20 years was entered, and he is now serving said sentence. Later, but at the same term of court, the appellants filed their motion and amendment thereto, asking that the forfeiture of the bond be set aside and the bond exonerated, on the ground that the defendant had been produced, in execution of the judgment en
Section 5516 of the Code provides as follows:
“If, before the final adjournment of the court for the term, the defendant appear and satisfactorily excuse his failure, the court may direct an entry to be made on the record that the forfeiture of the undertaking or deposit be discharged.”
This statute confers a large discretion upon the court in passing upon the excuse offered by the defendant for his default. No excuse for the failure of defendant to appear was offered in this case; hence this statute has no application to this ease. The motion is based solely upon the provisions of Code Section 5519, which section is as follows:
“The undertaking of bail will in all cases be exonerated, the sureties discharged and, if a judgment has been docketed and lien perfected as in this chapter provided, the same released and satisfied, if the defendant is produced in execution of a judgment of imprisonment, or commitment for a fine, or fine and costs, or if the judgment is for a fine or fine and costs only, without an order of commitment. When the bail is exonerated, sureties discharged and lien released, the clerk must at once enter a satisfaction of the judgment, making a memorandum of the facts, following the docket entry thereof, and if judgments have been entered up in other counties, he shall transmit to the several clerks of such counties a certified copy of such satisfaction and memorandum, who shall enter the same in the same manner, and from and thereafter such judgment shall be canceled and satisfied.”
The sole question presented upon this appeal for decision is: Was the defendant, who was apprehended and arrested upon a bench warrant and brought into court by the sheriff for sentence, produced in execution of the judgment, in such sense as to exonerate the sureties on the bond?
Section 4994 of the Revision of 1860 provided that:
“If, before judgment is entered against the bail, the defendant be surrendered or arrested, the court may in its discretion, remit the whole, or any part, of the sum specified in the undertaking. ’ ’
This section was carried into the Code of 1873 as Section
It is the theory of counsel for appellee that the word “produced,” as employed in Section 5519, refers to some act on the part of the bondsmen by which the defendant is brought into court for judgment, or in execution thereof, and that the apprehension and arrest of the defendant by the sheriff upon a bench warrant are not equivalent thereto; whereas counsel for appellants contend that the statute contemplates no distinction between production of the defendant by the sureties upon his bond- and by the sheriff upon a' bench warrant. We said, in State v. Sandy, 138 Iowa 580" court="Iowa" date_filed="1908-06-08" href="https://app.midpage.ai/document/state-v-sandy-7112978?utm_source=webapp" opinion_id="7112978">138 Iowa 580:
“Technically considered, bail is the delivery of a person to the sureties on his bond, he being supposed to continue in their friendly custody, instead of jail; so that the sureties on the bail bond become the bailees or custodians of the person of their principal, and may, at any time before the entry of forfeiture, or possibly judgment, be exonerated by his surrender, as provided by statute.”
Appellants, by the execution of the bond, secured the release of the defendant from the custody of the sheriff, and themselves assumed the responsibility for his appearance or production in court at the time and for the purpose fixed in the bond. In other words, the instrumentalities of the state were, for the time being, suspended, and appellants became the custodians
Some suggestion was made in oral'argument that the recent opinion of this court in Bruntlett v. Carroll County, 193 Iowa 875" court="Iowa" date_filed="1922-05-09" href="https://app.midpage.ai/document/bruntlett-v-carroll-county-7119774?utm_source=webapp" opinion_id="7119774">193 Iowa 875, extends the scope and effect of Section 5519. The Bruntlett case deals with an entirely different question, and the decision is based upon the fact that the defendant in that case was produced by the bondsmen, in execution of the judgment. The decision in that ease gave effect to the plain provisions of the statute, and no more, and is in no respect in conflict with the conclusion reached herein.
The order and judgment of the court below is — Affirmed.