Opinion
Rehearing Denied July 13, 1931
Hearing Granted by Supreme Court Aug. 10, 1931
Appeal from Superior Court, Alameda County; James G. Quinn, Judge.
Action by the People of the State of California against Charles D. Meyers and another. From a judgment for defendants, plaintiff appeals.
Affirmed.
COUNSEL
Earl Warren, Dist. Atty., Ralph E. Hoyt, Chief Asst. Dist. Atty., and James H. Oakley, Deputy Dist. Atty., all of Oakland, for appellant.
Leo A. Sullivan, of Oakland, for respondents.
OPINION
STURTEVANT, J.
The plaintiff commenced an action against the defendants to recover a judgment for an alleged breach of a bail bond. The defendants answered, and the action was tried before the court sitting without a jury. The trial court made findings in favor of the defendants, and, from the judgment entered thereon, the plaintiff has appealed.
On June 29, 1926, a complaint was filed in the justices’ court of the city of Oakland charging Mrs. E.W. Breed with having committed a felony; that is, a violation of section 476 of the Penal Code. Later a warrant issued, it was served, a preliminary examination was had, and on October 4, 1926, Mrs. Breed was held to answer, and her bail was fixed in the sum of $1,000. On the same day these defendants furnished the bail, and the defendant was released. The bail bond was in the exact language of section 1278 of the Penal Code as said section was worded on that date. The condition expressed was "We, Chas. D. Meyers residing in the City of Oakland, California, and by occupation retired, and E.M. Berger, residing in Oakland, California, by occupation, contractor hereby undertake that the above-named Mrs. E.W. Breed alias H.M. Correa, will appear and answer the charge above mentioned in whatever court it may be prosecuted, and will at all times render herself amenable to the orders and process of the court, and if convicted will appear for judgment, and tender herself in execution thereof; or if she fails to perform either of these conditions, that we will pay to the People of the State of California the sum of One Thousand Dollars ($1000).
After she gave the bond, it was approved, Mrs. Breed was released, and she started to leave the courthouse. As she did so, she was placed under arrest by virtue of a warrant which had issued out of the police court of the city and county of San Francisco. She was immediately taken to San Francisco and incarcerated. Thereafter on February 19, 1927, a judgment was pronounced against her adjudging her guilty, and she was ordered imprisoned in the county jail for twelve months. On March 26, 1927, the superior court of San Francisco entered an order granting the defendant’s motion to suspend sentence, defendant to leave the state, and to be placed in the custody of the adult probation officer of San Francisco, and to be subject to such regulations as said probation officer might impose. In compliance with said order Mrs. Breed went by boat to Oregon. Having arrived there she did not remain long, and was back in San Francisco as early as the 9th day of May, 1927.
On November 18, 1926, the defendant’s case was on the calendar of the superior court in Alameda for arraignment. The record shows that she was not present, that no one appeared for her as counsel, and it does not show that the defendant or her bondsmen had any notice of the case being on the calendar. A continuance was had until November 24, 1926. On the latter date, on request of defendant’s counsel, another continuance was had, and then another which extended to December 16, 1926. Other continuances were had from time to time. After December 2, 1926, each order recites that the defendant was not present, and no order recites the presence of defendant’s counsel. In this manner the cause was continued until July 7, 1927. Two of the orders made during said period are of particular importance. The order made February 24, 1927, is as follows: "The above named defendant being confined in the County Jail S.F. serving a term of one year, it is by the Court ordered that arraignment be and hereby is continued to May 26, 1927, at 9:30 A.M." The order made July 7, 1927, is as follows: "The above entitled cause coming on regularly this day for arraignment, comes now into court the district attorney, and no appearance being made by the defendant or by her counsel, the defendant not being present or answering to the name when called at the door by the sheriff, and it now appearing to the court that this cause was regularly on the calendar this day for arraignment and this is an occasion when the presence of defendant is lawfully required in court and she having failed to appear in court without sufficient excuse, it is therefore ordered by the court that the defendant’s bail be and the same is hereby ordered forfeited. It is further ordered that a bench warrant issue for the arrest of the defendant."
The plaintiff makes many points why the judgment should be reversed. These points consist of the statement of certain reasons, which it is argued are insufficient to sustain the judgment. With many of them we agree, but that does not determine the case. The plaintiff recites many of the foregoing facts, and then contends that the order made by the superior court of San Francisco on March 26, 1927, placing Mrs. Breed on probation, was in excess of jurisdiction and void. The plaintiff also specially calls attention to the fact that she violated the probation, and almost at once returned to San Francisco. When these facts occurred, the plaintiff makes the broad contention that the obligation of these defendants was revived, and it instantly became their duty to produce the defendant before the superior court of Alameda county. The authorities cited by the plaintiff in this behalf are cases in which the prisoner was arrested after having given bail, but are not cases in which the prisoner was tried and convicted on the second offense. The law is well settled that if a prisoner has given bail, and he is later arrested in the same jurisdiction on a different offense, the mere matter of an arrest does not exonerate his bail. Under the same facts, if he is convicted under the second charge, but is at large on the return day mentioned in his bond, the question of exoneration of ball is one on which the courts disagree. McDonald v. Commonwealth, 213 Ky. 570, 281 S.W. 538, 45 A.L.R. 1034. But if the second arrest be made for a different and prior offense, on process issuing out of another county, and it is followed by imprisonment which extends beyond the return date mentioned in the bond, such imprisonment operates to exonerate the bail theretofore given under the first charge. State v. Douglas, 91 W.Va. 338, 112 S.E. 584, 26 A.L.R. 408, 417; 1 Bishops Crim.Proc. (2d Ed.) p. 226; 3 R.C.L. 52; 6 C.J. 1027. The reason for the rule was stated in People v. Bartlett, 3 Hill (N.Y.) 570, in the following language: "I am of opinion that the plea is a good answer to the action. It is a general principle of law that where the performance of the condition of a bond or recognizance has been rendered impossible by the act of God, or of the law, or of the obligee, the default is excused." As to contracts in general, our statutory provision is (Civ.Code, § 1511) as follows: "The want of performance of an obligation *** is excused by the following causes, to the extent to which they operate: 1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law. ***" Our statute on the specific subject is "A surety is exonerated. *** 2. To the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety or inconsistent with his rights. ***" (Civ.Code, § 2840.) But the plaintiff argues it was not impossible, under the facts, for the defendants to produce the prisoner. The plaintiff contends that the bondsmen could have applied for an order directing the bringing of the prisoner into Alameda county for the purpose of arraignment and trial. It cites section 1567 of the Penal Code. That statute is worded as follows: "When it is necessary to have a person imprisoned in the state prison brought before any court, or a person imprisoned in a county jail brought before a court sitting in another county, an order for that purpose may be made by the court and executed by the sheriff of the county where it is made." There is nothing on the face of that section that expressly vests any such right in the bondsmen. That under that section the plaintiff could have made an application for the attendance of witnesses is quite clear (People v. Willard, 92 Cal. 482, 485, 28 P. 585); however, even as to an application by one of the parties to the action, the order will be granted or refused by the trial court in the exercise of a sound discretion. At page 486 (28 P. 585, 587) of the case above cited the court said, "We feel that this is a privilege extended to persons accused of crime which is capable of gross abuse, unless strictly guarded and we do not wish to be understood as holding that the order should be made except upon a very strict showing, and upon previous notice to the state of the application; but when such notice has been given, and a case of apparent necessity is made out, or, in other words, when the materiality of the evidence and its importance are clearly and satisfactorily shown, and the good faith of the defendant making the application also appears, the court should, in the exercise of its discretion, make the order for the attendance of the prisoner as a witness." (Italics ours.) The plaintiff cites no authority to the effect that under said statute a defendant can arrange on which charge he shall first be tried. We have found none. Similar statutes exist in other jurisdictions. Furthermore, in some of the states it is expressly provided that a writ of habeas corpus will issue for the purpose of aiding the bondsmen to carry out the terms of their bond by producing the prisoner. 4 Bancroft’s Code Practice and Remedies, p. 4364. In the jurisdictions having such statutory provisions the decisions are to the effect that such statutes are enacted for the purposes of an orderly determination of questions of comity between the conflicting jurisdictions, and that the place of trial is of no concern to the prisoner. 29 C.J. 49; In re Beavers (C.C.) 131 F. 366, 368. Nor is the subject-matter any concern of the bondsmen. Mackin v. People (Ill.) 8 N.E. 178. Ex parte Bustillos, 26 N.M. 449, 194 P. 886, commencing on page 891, the court said: "It is only where there is a conflict of right or jurisdiction to the custody of a person that the question of the right of arrest arises. A person under arrest by one authority has no legal interest or right which he can assert against his arrest by another authority. In such a case, if the authority first arresting the person yields to the second authority, the person concerned has suffered no legal injury. It is purely a matter of comity between courts and authorities and is based upon the doctrine that the courts or authorities which first obtain the custody of the prisoner may retain the same until he has been fully dealt with." One of the states having a statute so worded on the subject of the scope of habeas corpus proceedings is the state of Oklahoma. The case of Metcalf v. State, 57 Okl. 64, 156 P. 305, L.R.A.1916E, 595, was decided by the Supreme Court of Oklahoma. The facts of the case are closely akin to this case. The court quotes, with approval, from In re Fox (D.C.) 51 F. 427: "Where a person, under bail to answer an indictment in a federal court, is arrested on state process for a crime against the state, his confinement thereunder is not in violation of any law of the United States, and he is not entitled, as a matter of personal right, or at the instance of his sureties, to be released on habeas corpus, and placed in the custody of the marshal. If the federal authorities do not insist upon the prior jurisdiction of the federal court, the accused and his sureties have no right to complain."
That section 1567 of the Penal Code and similar statutes were not enacted for the benefit of the accused or of his bondsmen seems to be manifest. It is not infrequent that a certain person before being arrested has committed several violations of the Penal Code. Assuming that prosecutions and arrests commence and that the accused is arrested and gives bail on as many as ten different offenses, and then is later arrested on another offense, if the contention of the plaintiff is correct, then the court having jurisdiction of the last offense may be called upon to make many different orders for the delivery of the defendant by the sheriff to many different sheriffs; and the sheriff, whose duty it is to hold the defendant in his custody, will be quite unable at any given hour to state where the accused may be.
The plaintiff pleaded, and the trial court found, ten several defaults, the first one being November 24, 1926, and the last one being July 7, 1927. In making its order of forfeiture, the court did not base it on any specific default. The finding made on that subject was in the general language "*** The said Mrs. E.W. Breed failed, neglected, and refused to appear for said arraignment upon said charge hereinabove designated, mentioned and referred to and did not render herself amenable to the orders and process of the said court. ***" During the trial, and also in this court, these defendants contended that at the time the prisoner defaulted on February 24, 1927, she had been convicted and was imprisoned in San Francisco. The court found the facts accordingly. As a conclusion of law the court found, "That the defendants were prevented by operation of law from having the custody of said prisoner and that by reason thereof are exonerated from their obligation under the aforesaid bond and undertaking." Under the authorities cited above, those facts constituted a complete defense. The plaintiff calls attention to subsequent events which were also found by the court; the release of the prisoner by the superior court of San Francisco, her transportation to Oregon, and her return to San Francisco prior to July 7, 1927, and the order of forfeiture which was made on said date. By the acts of the obligee and by operation of law the defendants’ bond was exonerated as early as February 24, 1927, the date the cause was called for arraignment. Excepting by the consent of the sureties, their bond would not be revived. People v. McReynolds, 102 Cal. 308, 36 P. 590; State v. Orsler, 48 Iowa, 343; Miller v. State, 158 Ala. 73, 48 So. 360, 20 L.R.A.(N.S.) 861; State v. Funk, 20 N.D. 145, 127 N.W. 722, 30 L.R.A.(N.S.) 211, Ann.Cas.1912C, 743; Caldwell v. Com., 14 Grat. (Va.) 698. The continued imprisonment by the plaintiff’s agents in San Francisco, during the times the prisoner was under bond to be in Alameda county, worked the exoneration. The obligations of the defendants had been terminated long prior to July 7, 1927, when the order of forfeiture was entered. That order did not, therefore, have any effect on the rights of the defendants; but they had the right to show the facts when called into court as defendants in this action. People v. Bartlett, 3 Hill (N.Y.) 570.
The judgment is affirmed.
We concur: NOURSE, P.J.; SPENCE, J.