The opinion of the court was delivered by: AVIS
Stanley Petrone, the principal, and defendant in a criminal action in the United States District Court for the District of New Jersey, was placed under arrest on or about May 1, 1935, and held to answer in bail fixed at the sum of $3,500. The sureties above named executed a recognizance in the above-mentioned sum on the date aforesaid for the appearance of said principal at such time as he might be required by the court.
The case was fixed for trial on January 6, 1936, and the defendant failed to answer.As a consequence the bail was forfeited, and subsequently proceedings were commenced by scire facias against the defendant and sureties, resulting in a judgment against all of the parties for $3,500 and costs.
The sureties filed their petition, praying that they be relieved of the judgment; the bail exonerated, and the forfeiture vacated. Upon this petition, an order to show cause was issued, testimony taken thereunder, and argument presented.
The evidence shows that on the date fixed for trial, the defendant was imprisoned in the District of Columbia jail under a sentence imposed by the Judge of the Supreme Court of the said District, upon a conviction for violation of the Liquor Taxing Act of 1934. The defendant was sentenced under the name of Lawrence J. Swann, and proofs produced satisfy the court that "Petrone" and "Swann" is the same individual.
The petitioners rely upon an act of Congress, found in 18 U.S.C.A. § 601, reading as follows: "When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no willful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced."
Although this act is remedial and should be liberally construed, there are three provisions which are jurisdictional:
(1) "No willful default of the party."
(2) "That a trial can, notwithstanding, be had."
(3) "That public justice does not otherwise require the same penalty to be enforced."
As to No. 2, the trial cannot be had because the indictment has been nolle prossed, on the motion of the United States Attorney.
It is first argued that "willful default" should be construed to apply to the sureties, who are the petitioners, and that if they show good cause the remission should be allowed. Several cases are found in the reports in which the courts have taken this view. It is not necessary to cite them, as I am convinced that the other view applying the statute to the default of the principal only is the correct interpretation of the law. See United States v. American Bonding Co. of Baltimore, Md. (C.C.A.9) 39 F.2d 428, and cases cited; Fidelity & Deposit Co. of Maryland v. United States (C.C.A.9) 47 F.2d 222; United States v. Costello (C.C.A.6) 47 F.2d 684; United States v. Levine (D.C.E.D.N.Y.) 1 F.Supp. 104; United States v. Vincent (D.C.Mass.) 10 F.Supp. 489.
It is true that the statute gives discretion to the court, but this is to be exercised as a judicial discretion, and applies generally to the discretion which may be exercised by the court, even if the default is not willful.
Under this division, it is also argued that the default was not "willful," because at the time the appearance of the principal was required in this court, he was imprisoned in Virginia, under a conviction had in the District of Columbia. It is true, and the cases hold, as between different sovereignties, that when a party is arrested by order of a state court and released from custody on bail, and his bail permits him to go into another state, where he is arrested and imprisoned ...