112 Iowa 403 | Iowa | 1900
A preliminary information was filed before á justice of the peace of Hardin county, accusing defendants, Owens and Evans, of the crime of keeping a gambling house. They appeared to that information, and, waiving examination, were held to answer to the grand jury, their bail being fixed at $300 each. The justice thereupon made this record on his docket: “Now, on this day, July I, 1898, the defendants deposited a check for $600 made by J. L. Perry upon the Exchange Bank, Parkersburg, Iowa, payable to John C. Crockett, clerk of the district court, ol' bearer, in lieu of bail bond, and they were released. C. Burling, J. P.”'' The check referred to in this entry was indorsed,: “J. O. Crockett, Clerk,” and bore the “Paid” stamp of the bank on which it was issued, dated “July 2, 1892.” The sheriff made the following receipt, under date of July T, 1898: “Received of J. L. Perry clieck on the Btate Exchange Bank of Parkersburg, to be used, if honored by drawee, as and in lieu of bail of Will Owens and ]\1. Evans for their appearance to the next term of the district court of Hardin county, Iowa. A. W. klitterer, Sheriff', by Lem Harris, Deputy.” Thereafter the grand jury returned two indictments against defendant I!. Evans alone, on each of which bail was fixed at $600. Thereafter defendant Evans filed an application for reduction of bail, and in this application stated that, if bail was reduced, “the money in the hands of J. C. Crockett, belonging to J. L. Perry, will be deposited with’ the clerk in lieu of bail.” Perry also filed a written statement of consent, providing, in substance, that the said sum of $600 alleged to belong to him, then in the hands of the clerk, might be held in lieu of bail, provided the said sum was accepted in full of bail
Some evidence was introduced in support of and in resistance to these motions. This evidence discloses the fact that the clerk held the money in his possession at the time of trial; that he was unable to say jnst where he obtained it, but that it was deposited in lieu of hail for the ■appearance of defendant; and that the fine and costs imposed on defendant Evans liad not been paid. It also appears fliat Perry was solicited to fumisb bail for defendants at the time the preliminary information was filed, and that he furnished the check for $600, whereby the money was ■obtained, and that his check was accepted in lien of bail. It also appears that defendant had' done nothing towards surrendering himself to the sheriff, hut that he was at the time of the hearing in the custody of the sheriff, under a
Turning now to the law, we find that, in the absence •of statute, money cannot be taken in lieu of bail. Butler v. Foster, 14 Ala., 323; City of Columbus v. Dunnick, 41 Ohio St., 602; State v. Lazarre, 12 La. Ann., 166; U. S. v. Faw, 1 Cranch (C. C. 486, Fed. Cas. No. 15,078) ; Dean v. Com., 1 Bush, 20; Smart v. Cason, 50 Ill., 195. Our statute provides that “the defendant may at any time, * *■ * instead of giving bail, deposit with the clerk * * * the sum mentioned in the order” (admitting him to bail). It further provides that “when money has been deposited by the defendant * * * the clerk under the direction of the court shall apply the money in satisfaction of so much of the judgment as requires the payment •of money.” There are also provisions for the substitution of money in place of bail, and for the substitution of bail" in place of money. See Code, sections 5524-5527, inclusive. There are also provisions for the surrender of the defendant by the bail, and when money has been deposited the defendant may surrender himself and secure,a return of the ■deposit. Code, sections 5528-5530, inclusive. It will be observed that there are no provisions for the deposit of money by any person other than the defendant himself— no right of surrender except by the bail or the defendant himself, and, when a deposit of money is made, no right of return except to the defendant. The thought that a third person may furnish tlie money that defendant is authorized to deposit, and afterwards surrender the defendant and secure a return of the deposit, is distinctly negatived. Bail is expressly defined in the Code, and the form thereof given. Deposit of money by a third person is not authorized. Code, sections 5500-5512, inclusive. The sheriff wás not authorized to accept money for the appearance of the defendant. State v. Farrell, 83 Iowa, 661. And
“September 28, 1898. $300. July, 1898, $600 deposited in lieu of bail for appearance of Will Owens and M. Evans for action of the grand jury, August, 1898/ term. John O. Crockett, Clerk.”
“September 28, 1898, $300 deposited in lieu of bond for the appearance at the October, 1898, term of the district court of M. Evans, as given in the indictment on W. V. Evans, as appears in motion and order, to answer to the indictment in this cause. J. C. Crockett, Clerk.”
The last entry evidently refers to the order of the court. Now, while Perry may have owned the. check that was deposited with the justice, and may have owned the money that was collected thereon by the clerk, still we think, in view of the order made by the court on the application for reduction of bail, and the facts subsequently appearing, it must be held that, when left with the clerk in fulfillment of the order entered by the court, it should be treated as belonging to the defendant Evans. When Perry deposited the-money, he must be presumed to have had knowledge of the provisions of the statute quoted, and of the order made by the court, and the deposit must have been made or assented to
There is no claim that defendant surrendered himself to the sheriff, and he is not asking1 a return of the money, blit is content to have it applied in satisfaction of tho
The case of Arquette v. Supervisors, 75 Iowa, 192, relied on by appellant, in no manner conflicts with the conelusions here announced. That case came to us on certified questions from the trial judge, none of which involved the