Opinion
Docket No. 33, Calendar No. 47,760.
Decided July 14, 1959.
Appeal from Lenawee; Martin (Rex B.), J. Submitted June 4, 1959. (Docket No. 33, Calendar No. 47,760.) Decided July 14, 1959.
Andrew Heflin did not appear at time set for his criminal trial and his bond was forfeited. On order to show cause, judgment was entered against Michigan Surety Company, from which it appeals. Affirmed.
Paul L. Adams, Attorney General, Samuel J. Torina, Solicitor General, and Kenneth B. Glaser, Jr., Prosecuting Attorney, for the people.
Williams Williams ( Lewis R. Williams, Jr., of counsel), for defendant surety company.
One Andrew Heflin, formerly of Chicago, was charged in Lenawee county "with the crime of carrying a concealed weapon contrary to the statutes in such case made and provided." He was released pending trial upon filing of a statutory recognizance. The recognizance was executed by appellant Michigan Surety Company in the penal sum of $1,000.
Trial counsel for Heflin was appointed by the court. Heflin did not appear at the opening of the term as conditioned by the bond. The following record was made January 13, 1958, on the occasion:
"Court being in session, The people being represented by Mr. Kenneth B. Glaser, Jr., prosecuting attorney, the respondent not present in court, but represented by his counsel, Mr. James C. Beardsley, the case was called at the opening of the January term of court as follows:
"The Court: People vs. Andrew Heflin. Mr. Beardsley, is your client here?
"Mr. Beardsley: He is not here, Your Honor, not entirely his fault. I have a very uncertain address where he is concerned. He may not have received my letter in time. I assume he will be here by the trial date.
"The Court: Are we going to try that matter or aren't we?
"Mr. Beardsley: I assume so, yes.
"The Court: Set that down for the 28th then."
Moved to action by the foregoing, defense counsel wrote Heflin January 13th as follows:
"Since speaking to you I have learned that your case is set for Tuesday, 28 January at 9 a.m. Please plan to call upon me at my office not later than the afternoon of 27 January."
The letter was sent by registered mail. It was received by Heflin in Chicago on January 16th.
The case was called up for trial at the opening of court, January 28th. The jury panel was present. So were the people's witnesses. Heflin was not on hand. After some colloquy between the trial judge and defense counsel, the trial judge formally ordered that Heflin's bail be forfeited and that a bench warrant for Heflin's rearrest should be issued forthwith.
About noon the same day Heflin appeared at the Lenawee county courthouse, insisting that the delay of his appearance before the court was due to his missing a bus the night before. Heflin then was arrested. Five days later he entered a plea of guilty as charged. Sentence followed later. So much for Mr. Heflin.
February 13, 1958, on petition of the prosecuting attorney, the trial judge (Hon. Rex B. Martin of the 39th circuit) issued an order directing appellant's appearance before the court to show cause why judgment should not enter against it in the amount of the statutory recognizance, pursuant to CL 1948, § 765.28 (Stat Ann 1954 Rev § 28.915). Appellant thereupon petitioned the court "for an outside judge," which petition was denied. Judgment against appellant followed, under the mentioned statute. From such judgment the named surety has taken this appeal.
Two allegations of error are presented. The first is that Judge Martin was guilty of an abuse of discretion in refusing to grant appellant's motion for limitation of judgment to the sum of $126.06, which sum represents appellant's proven calculation of the out-of-pocket loss suffered by Lenawee county on account of Heflin's failure of timely appearance for trial. The second is that Judge Martin should have disqualified himself with respect to proceedings under the above statute.
As in People v. Benmore, 298 Mich. 701, we find no evidence of an abuse of discretion in this record. Appellant became responsible for Heflin's timely appearance and agreed to pay in default thereof. Heflin did not appear on time. His excuse is not very convincing considering the delay of start, from Chicago for Adrian, until late in the evening previous to the morning of trial. More might be said of the excuse, including the round-about route selected for travel (Chicago to Toledo to Adrian), but we think it quite unnecessary.
The second point — that Judge Martin should have disqualified himself — borders on the frivolous. That the judge was exercised is evident; also understandable. The record shows that appellant, by various means, attempted to apply pressure on the judge in favor of relief from the recognizance. The judge indignantly rejected such effort. Far from criticizing his action in such regard, we are led to commendation thereof. He said, among other things, leading up to his decision:
"In addition to that the court got some other calls from other persons, one call from a Democratic State senator in Detroit who had been called by the bonding company agent. He asked me to do everything I could not to hurt his good friend. * * *
"The prosecutor's office got calls from people who claimed they were near the Republican headquarters up in Lansing — which I hardly think was proper in this case — and asked in behalf of the grand old party that no action be taken. * * *
"Harry Goldfarb, claiming to be the general manager of the bonding company, called me * * * [later] and informed me in no uncertain terms the court had no business to forfeit the bond and that wasn't the way things were done, and the court should learn better than that.
"I asked him if he had offered to send the money in. He said that he would gladly send the $1,000 over in this case provided we didn't cash it, a check for the $1,000.
"Now counsel here has likewise made an offer to have the money turned in. No money has been forthcoming."
Affirmed. Costs to plaintiff.
DETHMERS, C.J., and CARR, KELLY, SMITH, EDWARDS, VOELKER, and KAVANAGH, JJ., concurred.