189 N.W. 625 | N.D. | 1922
Lead Opinion
In Cass county defendant was accused of carrying concealed-weapons and bound over to the district court. His wife borrowed and deposited $1,400 as bail for his appearance at the November term of the district court. When his case was called he was civilly dead. It was as impossible for him to appear as if he were actually dead. He was at Stillwater in the state’s prison under a sentence for life on a charge and conviction of bank robbery. When his case was called in the district court of Cass county, his counsel who had received some good pay, failed to appear for him and plead the fact that he was legally dead and in the penitentiary at Stillwater, Minn., and that his appearance had become an impossibility. Hence the court declared the forfeiture of his bail money. In 1922 the defendant and his wife on proper affidavits made a motion to vacate the forfeiture. On May 8th the motion was denied. The case is before this court on an appeal, and on a stipulation that it be submitted on the record and on briefs filed by counsel.
The wife makes affidavit sho'wing that on her property she borrowed the bail money. She sent $1,500 to Mr. Barnett, who appeared as coun
It appears that on the motion to undo the forfeiture counsel for the state insists that defendant should have remained in this state, and that his arrest in Minnesota does not excuse the default. But that is rather technical. I f he had not gone to Minnesota, we may well assume that he would have been forcibly taken there. We may assume that he has g'oten his just deserts, and that this state is just as well rid of him as if he had killed himself, and in that way made it impossible for him to appear in the district court of Cass county. The $1,400 was put up to secure the appearance of defendant, and by his fault or misfortune his appearance became impossible. If we allow everything that has been charged against defendant, it is no reason for robbing him, or his wife, who put up the bail money. There is no honesty in retaining the money. While demanding honesty of all men, it behooves the state to set an example of honesty. It is not for the state to adopt the principle that he may take who has the power, and he may keep who can. The showing is that defendant’s wife borrowed'the money by mortgaging her property. Defendant and his wife join in the petition that the forfeiture be vacated and the money refunded to the wife, after deducting all the actual court expenses.
The motion is fair and reasonable. Order denying the motion is reversed.
Concurrence Opinion
(specially concurring). In Minnesota the defendant was arrested, convicted, and sentenced to the state penitentiary for life for bank robbery. In North Dakota, previously, he had been arrested
The carrying of concealed weapons is made, by statute, a felony. Chap. 83, Taws of 1915. By statute bail might have been furnished by an undertaking. Section 11122, C. T. 1913. In lieu thereof a cash deposit may be made. Section 11119, C. T. 1913. The statute further provides that if, without sufficient excuse, any person, who has given an undertaking in a criminal action, neglects to appear, the court may declare forfeited the money deposited, but, at any time before final adjournment, when such person or his bailor appears and satisfactorily excuses the neglect, the court may direct the forfeiture to be discharged upon such terms as may be just. Section 11125, C. T. 1913. I am of the opinion that the record clearly discloses a satisfactory excuse for the neglect or failure of the defendant to appear, and that the ends of justice demand that the bail, as given, be remitted to the wife, less expenses incurred by tiie state. This court stated in State v. Funke, 20 N. D. 145, 150, 127 N. W. 722, 30 L. R. A. (N. S.) 211, Ann. Cas. 1912C, 743, that the rule is and should be that uncontrollable circumstances preventing appearance, pursuant to stipulations in the bail bond, should be sufficient to excuse a forfeiture. The record does not disclose that through connivance or conspiracy the wife deposited this cash bail, in order that the defendant might abscond or leave the state. So far as the record discloses, she is innocent of any intentional wrongdoing, and tried, in a spirit of loyalty, to assist her husband, who was in trouble.
Under the general theory of bail, the defendant, upon his release through ’cash bail, was in the custody of his bailor, his wife. She might surrender his person, or cause him to be arrested and his bail withdrawn, at any time. See 6 C. J. 891; § 11124, C. T. 1913; note 23 T. R. A. (N. S.) 137; Ann. Cas. 1912C, 746. She might even pursue him into an
Under the circumstances, it would be unjust to enforce a forfeiture of the bailor’s money. In effect, the enforcement of a forfeiture, under the circumstances, would operate to punish the bailor in money loss much more severely than the penalty by fine imposed for the crime. Chap. 83, Laws of 1915- Accordingly, the cash deposit should be remitted to the wife, less expenses incurred by the state.
