Opinion
No. 13,898.
Filed February 27, 1930. Rehearing denied May 15, 1930.
1. BAIL — For Appearance to Answer Future Indictment — Forfeiture of Bond Given — Motion to Quash Indictment Properly Rejected. — On quashing an affidavit charging a criminal offense, the court required the defendant to execute a bond for her appearance to answer any indictment that might be returned against her charging the same offense. Subsequently, the grand jury returned an indictment against her for the same offense. Thereafter, the court made and entered of record an order requiring the defendant to appear at a specific hour on a day named. The defendant not appearing at the time fixed, her bond was forfeited, and the clerk ordered to give notice of the forfeiture to the sureties on said bond, pursuant to Acts 1927, ch. 132, § 2 (§ 2112 Burns' Supp. 1929). The fact that the indictment was insufficient on a motion to quash was no defense to the forfeiture, and a motion to quash was properly rejected. p. 402.
2. BAIL — Forfeiture of Appearance Bond — Motion After Forfeiture — Properly Overruled. — After the court had declared a forfeiture of an appearance bond, the overruling of the sureties' unverified motion to have the court "withhold declaring a forfeiture" of the bond on the ground that the defendant was prevented from appearing by her serious illness at her home in a distant city was not error, especially where the only evidence in support of the motion was a certificate by a person represented as being a physician in attendance on her, but who did not designate himself as a physician in the certificate, even by signing his name as a doctor or physician. p. 403.
3. BAIL — Bond for Appearance — Sickness as Excuse for Not Appearing — Does Not Discharge Sureties. — In the absence of a statutory provision making sickness an excuse for not appearing at the time designated, the sureties on an appearance bond are not discharged by the sickness of their principal. p. 404.
4. BAIL — Appearance Bond — Withholding Declaration of Forfeiture — Within Discretion of Trial Court. — The granting or denial of an application to "withhold declaring a forfeiture" on an appearance bond for sickness of the principal on the bond is a matter within the discretion of the trial court. p. 404.
From Clark Circuit Court; George C. Kopp, Judge.
Proceedings by the State of Indiana against Lloyd Scholl and others to forfeit an appearance bond, given under Acts 1927, ch. 132 (§ 2112 Burns' Supp. 1929). From a judgment for the State, the bondsmen appealed. Affirmed. By the court in banc.
Laurent A. Douglass, for appellant.
James M. Ogden, Attorney-General, and Earl B. Stroup, Deputy Attorney-General, for the State.
On March 15, 1929, three separate affidavits, each duly approved by the prosecuting attorney, were filed in the Clark Circuit Court. All were against the same party, one Neva Miller Moss, and in one she was charged with criminal libel, in another with criminal slander, and, in the third, with making false statements in an advertisement. She was arrested and gave bond to answer said charges. Later, upon motion of her attorney in that behalf, said affidavits were each, by the court, quashed. Upon the quashing of said affidavits, the court ordered the said defendant held under a bond in the sum of $500 for her appearance to answer any indictment that might be returned against her in said matter, and, to secure her release, the bond involved in this action was executed.
Thereafter, on May 21, 1929, the grand jury of Clark County returned an indictment against said defendant, charging her with a violation of § 2954 Burns 1926, "making a false statement 1. in advertising." On June 1, 1929, the court made and entered of record an order requiring said defendant "to be and appear in said court at 9 o'clock a.m. of June 13, 1929." The said defendant not appearing at the time fixed, on motion of the prosecuting attorney, the said bond so given as before noted was, by the court, declared forfeited, and the clerk of the court was, by the court, ordered to give notice to the sureties on said bond, of such forfeiture. The attorney for said defendant then offered to file a motion to quash said indictment, but the court rejected said offer. There was no error in this. If the said indictment was subject to being quashed, still the court had power, as had once herein been exercised, of holding the defendant to answer a further indictment, but this would avail nothing if the defendant could defeat liability on the bond by staying out of the jurisdiction of the court and having the indictment quashed.
On the convening of court in the afternoon of said day, the sureties on said bond appeared with their attorney and "moved the court" to withhold declaring a forfeiture of said bond at 2. that time, giving as a reason therefor that the appearance of the defendant at that time was prevented by her serious illness, at her home in Washington, D.C., as shown by the statement in that behalf by one Battle, whom the said parties represented as being a physician in attendance upon said defendant. The said motion was not verified, and the said Battle did not, in the said certificate which they attached to their said motion and presented to the court, represent himself as being a practicing physician, even to the extent of designating himself as such in his signature to said certificate. Also, as has been noted, the court had already "declared a forfeiture" on said bond, and the only matter left to the sureties was the matter of presenting some legal reason why judgment should not be entered against them, as sureties on said bond, the condition thereof having been broken, or to make such a showing as would appeal to the sound discretion of the court, and thereby procure a delay in entering judgment against them, as for instance, by their making a showing that if given any reasonable time, they could and would produce their principal in court. No such showing was made, and the court did not err in rejecting the said motion.
When the bond was executed and the defendant released to the sureties, she was then in their custody; they were her "friendly jailors"; and the condition of their bond was that she 3. should be in court when called. The authorities all look one way, so far as we have been able to discover. They all hold that, in the absence of some statutory provision, sickness of the party principal is no excuse for not appearing. See Piercy v. People (1882), 10 Ill. App. 219; Cain v. State (1876), 55 Ala. 170; State v. Crosby (1896), 114 Ala. 11, 22 So. 110; Taylor v. Taintor (1872), 16 Wall. (U.S.) 366, 21 L. Ed. 287; Devine v. State (1858), 5 Sneed (Tenn.) 623. In the Piercy case, supra, it was said: "Nothing but the death of the principal is such an act of God, as will discharge the sureties under the law."
The matter of delay as presented to the lower court in this case was a matter which simply appealed to the discretion of the court, and, upon the showing made, we cannot say that the 4. court abused its discretion. The rules of law governing these matters, as to the liability of sureties upon bonds of the character herein involved, are harsh, and necessarily so on grounds of public policy, but, in the absence of statutory authority, we cannot change them. We find no error. Affirmed.