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UNITED STATES v. SMITH

May 18, 1933

UNITED STATES
v.
SMITH et al.; SAME v. BARONE et al.



The opinion of the court was delivered by: AVIS

The two cases set forth in the title hereof are almost identical as to the facts involved, and briefs have been filed by the attorney for defendants, setting forth the same legal reasons.

Both defendants were included in one information, and were jointly engaged in the same alleged violation, and this memorandum will therefore apply to both cases.

 The cases are submitted on scire facias proceedings on final hearing and on agreed statement of facts.

 The docket entries show that defendants appeared on June 17, 1929, and pleaded not guilty. At sundry later dates, the entries show the issuance and return of subpoenas, indicating that the cases were ready for trial, and not moved. Why, the record does not show. On May 19, 1932, Judge Fake, of this court, heard a motion to suppress the evidence, and, on the same date, motion was denied. On May 25, 1932, motion to quash the information was denied by Judge Fake. On May 27, 1932, subpoenas for witnesses were issued, and on June 1, 1932, recognizances were forfeited and scire facias ordered.

 Bench warrants were issued for defendants and returned unexecuted on June 2, 1932, and on October 3, 1932, order of Judge Fake, denying application to quash and denying application to suppress, was filed.

 Counsel for defendants, in effect, sets forth and argues four reasons why recognizance is void, and not binding upon the surety, viz.:

 The time is fixed by the statement in the recognizance as the "January term, 1929, * * * at ten o'clock A.M. on the fifth day of Feb. A.D. 1929 and from day to day and from time to time thereafter, until finally discharged therefrom."

 It would be difficult to more specifically state the time, and I feel such statement was sufficiently explicit. The place is stated as the "District Court of the United States in and for the said District of New Jersey * * * to be begun and held at the City of Trenton, N.J." The place is sufficiently stated.

 In addition to the clear statement of time and place, it appears by the record that both defendants appeared in court and entered their plea of "not guilty" to the charge, and their bail was continued. They apparently knew where and when they were to appear.

 (2) The recognizance was void because it did not hold the defendants for appearance at the next term of court.

 The opening day of the January term of the court at Trenton was a few days before the recognizances were executed, and the New Jersey statute referred to in the briefs (2 Comp. St. 1910, p. 1828, ยง 23) authorizes magistrates to let to bail, "unto the next court of quarter sessions or court of oyer and terminer." This provision is apparently for the benefit of the defendant, to give him a speedy trial, as provided by the New Jersey Constitution, and could not be detrimental to the defendants' cases. The statutes of New Jersey, generally, govern the taking of bail, and, if so, in this case, I believe it was complied with substantially.

 In addition, the federal courts are not required to literally follow the statute. Basett v. United States (C.C.A. 9) 18 F.2d 856, certiorari denied 275 ...


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