138 Iowa 580 | Iowa | 1908
Two indictments, one charging forgery, and the other uttering the forged instrument, were returned against defendant April 11, 1906. To secure his release from custody he executed two bail bonds of $500 each, wtih L. D. Slater and A. Cohen as securities. At the August, 1906, term of court the causes were continued at defendant’s request, and set down for trial on the 4th day of the October term. Witnesses were subpoenaed to attend at that time; but defendant having applied for a postponement of the trial, owing to his failure to secure the attendance of a witness, it was put off until the week following. The jury was impaneled and excused until the time fixed for trial. Defendant failed to appear then, but did so soon after the jury had been discharged, and, upon excuses then presented, forfeiture of his bond was waived, and the causes set down for the first day of the January, 1907, term of court. When they were reached for trial January 30th, the defendant again failed to appear, and an entry, forfeiting the bail in each case, was made. On February 7, 1907, defendant filed a motion to set aside the entry of forfeiture on the grounds (1) that he had fallen into a coal chute about two weeks previous, injuring his back so that he was “ sick and unable to get out ”; (2) that he had forgotten the date, and did not receive his attorney’s letters advising thereof; (3) that he was absolutely without means to pay his railroad fare, from Des Moines, where he lived, to Spencer, and was unable to borrow enough money for that purpose; (4) that he was in Des Moines at all times, and as soon as notified by his bondsmen tried to get money to go, but failed; and (5) that he is now in court making his application. The point presented is whether these grounds, in so far as supported by affidavits, “ satisfactorily excuse ” defendant’s failure to appear on the day the cause was assigned for trial.
The remaining excuse is that he had no money to pay railroad fare to Spencer, but he offers no explanation of how this came about, or of an emergency through which he was deprived of the means which he had the right to rely on in going to the place of trial. The bare statement of want of money and inability to borrow can no more be accepted as an excuse than forgetfulness of the date. It was defendant’s duty to provide himself with the necessary needs to return to the place of trial, or else remain where he could be called. The bondsmen were advised of his situation, and on their own showing made no effort to assist him.