United States v. Von Jenny
39 App. D.C. 377
D.C. Cir.
1912
Check Treatment
Mr. Chief Justice Shepard

delivered the opinion of the Court:

The foundation for the remission of the forfeiture of the recognizance is sec. 1020, Rev. Stat. U. S. Comp. Stat. 1901, p. 719, which reads as follows:

“When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no wilful default of the party, and that a trial can, notwithstanding, be had in the-cause, and that public justice does not otherwise require the same penalty to be enforced.”

The question whether, without the authorization of a statute, courts of common law had the power to relieve against the forfeiture of a recognizance, was decided in the affirmative by Chief Justice Marshall in a case in the circuit court, United States v. Feely, 1 Brock. 255, Fed. Cas. No. 15,082. Sec. 1020 Rev. Stat., enacted thereafter, may be said to be declaratory of the common law, and was apparently enacted not only to settle any doubt in respect of the power of the courts, but also to fix certain limitations upon the exercise of the discretion committed. These are; First, that there shall have been no wilful default of the party; second, that a trial can, notwithstanding, be had in the case; Third, that public justice does not require the same penalty to be enforced. The party seeking relief must show facts bringing him within those limitations.

The government contends that the judgment is erroneous upon two grounds: (1) The facts alleged by the petition do not show a case within the limitations of the' statute; (2) assuming the sufficiency of the showing made, the court had no power to set aside the judgment at a subsequent term.

The wilful default mentioned in the first limitation aforesaid must necessarily be that of the principal cognizor, whose appearance before the court for trial is the object of the recognizance. He must, either give bail for his appearance, or re*381main in the custody of the marshal. To secure him his liberty his surety voluntarily enters into the obligation of the recognizance. He contracts with the government, in consideration of the release of the principal, that the latter shall appear at a .specified time and place to answer the charge'against him, and remain from day to day until discharged by the court. The duties and powers of the surety in such an obligation have thus been declared by the Supreme Court of the United States: “When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. . . . They may doubtless permit him to go beyond the limits of the State within which he is to answer, but it is unwise and imprudent to do so; and if any evil ensue they must bear the burden of the consequences, and canno't cast them upon the obligee.” Taylor v. Taintor, 16 Wall. 366—372, 21 L. ed. 287-290.

The default of the principal cognizor was confessedly wilful; the affidavit of the surety shows that he was then, and has been continually since, a fugitive from justice. The principal’s default having been wilful, it would have been no defense to the rule to show cause why the forfeiture should not have been made final, that the surety, having permitted him to escape, had thereafter used diligence to secure his apprehension; nor would it be a defense that he may have arrested the defaulter, and have produced him for trial at a subsequent term of court. Ibid. United States v. McGlashen, 66 Fed. 537, 538, and cases there cited. For like reasons the subsequent voluntary or involuntary appearance of the principal would not bring him within the dispensation of the statute. Of the cases that have been cited in opposition to the government’s first contention, but one is directly in point. United States v. Traynor, 173 Fed. 114. This was a case in the district court, and holds not only that the forfeiture may be vacated at a subsequent term of the court, but also that it was a sufficient excuse to justify the remission of a part *382of the forfeiture, that the principal had been subsequently arrested, convicted, and sentenced. The question of the power of the court to remit the penalty after wilful default was not discussed; the learned district judge merely observing: “As was said by Chief Justice Marshall in United States v. Feely, 1 Brock. 255, Fed. Cas. No. 15,082, it is not the object of a recognizance ‘to enrich the Treasury.’ ” It is quite true that revenue is not contemplated in taking a recognizance; the ob-. ject is a higher and better one. Aside from its humanity the plain purpose is to secure the appearance of the principal for trial, or sentence, as the case may be, in order that there shall be prompt and certain enforcement of the criminal law. If sureties who have contracted and have it in their power to insure the appearance of their principal at the time and place stipulated may be relieved because, after permitting his escape, they may have made diligent efforts to arrest, or may even have arrested and produced him, there would be little inducement to diligence on their part in the first instance, and the punishment and prevention of crime would be seriously impeded. Having this in mind, we are of the opinion that it was the intention of Congress to promote sound public policy by the requirement that there shall have been no wilful default of the party charged with the offense.

While it is of no importance in the view that we have taken of the case, it may be remarked that the facts stated in the affidavit regarding the tracing of the fugitive from place to place are vague and indefinite. If this were good ground for the exercise of the power of the court, the facts should be set out in detail, and not a conclusion therefrom. The same may be said of the vague allegation of the expenditure of “to wit, more than a thousand dollars,” in efforts to trace and arrest the fugitive. Moreover, the surety in this case is one of those guaranty corporations which, it is a matter of common knowledge, undertake upon the payment of a premium to insure the performance of the obligation of their principal and to indemnify the obligee against failure therein, and generally, it is understood, require collateral security from the principal for their own indemnification. *383In such cases it should affirmatively appear that there was no collateral taken; otherwise the relief of the surety might ultimately inure to the benefit of the fugitive principal.

As regards the second contention, that the court has no power over the judgment after the expiration of the term at which the forfeiture has been made final, the case before cited holds to the contrary. The same decision was made by the circuit, court of appeals of the fourth circuit—one member of the court dissentng—in a case where the default of the principal had not been wilful, but was due to sickness, and there was an appearance and trial at the next term. As in this case, the application for relief was not made until the lapse of many terms. United States v. Jenkins, 100 C. C. A. 224, 176 Fed. 672, 20 Ann. Cas. 1255.

• If it was the intention of Congress that this power to remit a penalty might be exercised after the expiration of the term, when, according to the rule of the common law, the judgment passes beyond the control of the court, it would seem to savor of' an attempt to confer an executive power upon the judiciary. However, as the question is not necessary to the decision of the case, we will express no opinion upon it.

For the reasons given, the judgment will be reversed, with costs. Reversed.