Opinion
March, 1913.
Hersey Egginton, for plaintiff.
Thomas C. Whitlock, for defendant.
The objection made by defendant is that there was neither pleading, nor proof, of notice to the accused and the surety that the criminal case would be called for trial and that the people did not establish a prima facie case by introducing in evidence simply the undertaking, the records of the courts and the order of the forfeiture.
After being held by the magistrate, the accused was open to prosecution in any one of three manners: by proceedings in the County Court if indicted by the regular grand jury; by proceedings in the Supreme Court if indicted by a special grand jury; or by proceedings without indictment in the Court of Special Sessions. There might conceivably even have been further proceedings in the Magistrates' Court. Section 568, Code of Criminal Procedure, expressly provides that the undertaking upon which, pending proceedings, the accused is released, must be that the accused "shall appear and answer the charge above mentioned in whatever court it may be prosecuted."
The undertaking is only binding upon the surety in so far as it complied with that section. People v. McKenna, 63 A.D. 327. It is not contended that the undertaking under consideration either in form or effect is not in compliance with the statute. To that point all proceedings were in accordance with law, and under a valid undertaking the surety for bail is a substitute jailer who voluntarily assumes the obligation, severally and jointly with the accused, to have the latter as effectually in the power of the court, when his trial is reached, as if he were within the prison walls. Chamberlain v. People, 2 N.Y. 82, 83; Pernetti v. People, 99 A.D. 391; affd., 181 N.Y. 556. I think the people suing upon a forfeiture of such an undertaking establish their case, without any other proof than that mentioned in the foregoing statements of facts. Judicial notice is to be taken of the existence, terms and proceedings of the various subordinate courts and judicial officers whose acts the records purport to show. The rule that no presumptions are indulged in in favor of the proceedings of inferior courts only applies to the question of jurisdiction, such courts like others being presumed to have acted correctly as to matters within their jurisdiction, when that question is solved. Jones Evidence (2d ed.), § 36, p. 36.
With the presumption of regularity and sufficiency of all prior acts it must be taken, for verity, that the accused and his bail were duly called and did not appear or answer. People v. Huggins, 10 Wend. 465; People v. Van Eps, 4 id. 388; 5 Cyc. 148-150; City of New York v. Matthews, 180 N.Y. 41; People v. Kurtz, 9 N.Y.S. 745; People v. Powers, 6 N.Y. 50; Commonwealth v. Fogelman, 3 Penn. Super. Ct. 566.
The defendant cites People v. McKenna, 62 A.D. 327, and People v. Scott, 67 N.Y. 585. Neither of the cases has any applicability to that at bar. The first named case, as appears upon reading it and as subsequently pointed out in People v. Newman, 100 A.D. 436, was a case where the surety complied with the terms of the undertaking by producing the prisoner at a regular adjournment but not at an irregular adjournment of which he had no notice. In the second case the undertaking was for the production of the accused "from time to time as directed by said justice" and so provided for an express direction to appear at any adjourned day.
The suggestion in defendant's brief, that it would be a harsh and inequitable rule to hold that the surety must be in attendance upon the various courts where the principal may be called upon to answer, to obtain information as to the time when the principal would be required to appear in court, has neither force nor application in connection with the case at bar. If in another possible case any harsh and inequitable consequences would result from mistake, inadvertence or attendance at the wrong court, there is full power to relieve from a forfeiture so brought about. With that consideration I have, however, at present, nothing to do. This is not a proceeding for such relief. It clearly appears from the records that the principal did have notice of each of the adjournments and himself requested the one made to the day of forfeiture. He did not appear then, or since, with any excuse for his breach of the constructive custody which his surety, the defendant here, assumed over him and undertook to guard. I see no reason whatsoever why the defendant should not be held.
Motion denied.