Allison v. People

• Decision Date: 25 July 1955
• Docket Number: No. 17572,17572
• Citation: 286 P.2d 1102
• Parties: J. R. ALLISON, Ilene Allison and Henry Brewer, Intervenors and Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendants in Error, James Adamson, Defendant.
• Court: Colorado Supreme Court

Page 1102

286 P.2d 1102

132 Colo. 156

J. R. ALLISON, Ilene Allison and Henry Brewer, Intervenors and Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendants in Error, James Adamson, Defendant.

No. 17572.

Supreme Court of Colorado, En Banc.

July 25, 1955.

Moynihan-Hughes-Bjelland, Charles J. Moynihan, Victor F. Crepeau, Montrose, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., Frank A. Wachob, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendants in error.

MOORE, Justice.

September 5, 1953, an information was filed in the district court of Mesa county in which one James Adamson was accused of the crime of burglary. He was admitted to bail in the sum of $3,000 and was released from custody, on surety bond of the United States Fidelity & Guaranty Company. The cause was set for trial on the 23rd day of February, 1954, and was continued upon motion until the 5th day of March. March 30, 1954, the district attorney moved the court for forfeiture of the recognizance for failure of defendant to appear. Defendant Adamson and his bondsman, on April 1, 1954, moved the court to continue the cause until such time as it would be possible for him to make an appearance, to discharge the bond without forfeiture, and to release the surety thereon. After hearing argument on this motion the trial court entered an order giving Adamson and his bondsman ninety days in which to show cause why judgment and execution should not issue to enforce collection of said bond. Within the time allowed by the court, J. R. Allison, Ilene Allison and Henry Brewer, plaintiffs in error herein, moved for permission to intervene and as intervenors moved for a continuance of the case, or, in the alternative, to discharge the recognizance bond without forfeiture and release the surety thereon.

Defendant and the surety company filed their answer to the order to show cause, and, upon the issues framed thereby, the trial court entered judgment in favor of the people of the State of Colorado and against Adamson and his surety, in the sum of $3,000.

The basis upon which the intervenors entered the case is, that in order to secure the entry of the United States Fidelity & Guaranty Co. as surety, said intervenors were required to enter into an indemnifying agreement with said company, and in connection therewith they executed and delivered to said company certain deeds of trust on their homes located in Torrance, California. Ilene Allison is a sister of the accused James Adamson, and because of such relationship and the love and affection for her brother she persuaded her husband J. R. Allison, and Henry Brewer, a neighbor and friend, to enter into such indemnifying agreement. The deeds of trust executed by the intervenors upon their homes were second deeds of trust in each instance. J. R. Allison and Brewer are ex-servicemen with families dependent upon them, and the bulk of the property which they have been able to accumulate is represented in the homes which are occupied by their families. Neither Brewer nor the Allisons are able to indemnify the surety company from assets other than those represented by the equities in their respective homes.

Following the release of said James Adamson, and prior to the date when he was to appear for trial, he was arrested in the city of Los Angeles, California, on a charge of burglary. Upon disposition of that action in the State of California he was sentenced to prison for a minimum term of five years. The United States Fidelity & Guaranty Co. and plaintiffs in error offered to pay all costs incurred by the people of the State of Colorado in returning him to the jurisdiction of the Colorado court upon his release from the California prison, and plaintiffs in error moved the trial court to direct the Mesa county district attorney to place a hold order on him and to extradite him on his release from the California prison.

The trial court at the time of the entry of the judgment made the following statement, which indicates the basis for the judgment:

'As the Court has already stated to counsel, the matters that were argued in connection with the motion of the intervenors were before the Court sometime back when the district attorney's office moved to forfeit the bond, and at which time, after considering the law, this Court arrived at the conclusion that the terms of the bond called for the defendant's appearance at a certain time, and that it was no excuse that he was under indictment or had been convicted of an offense in the State of California and was then incarcerated and could not appear. The Court recognized then and now recognizes that there are two lines of authority, one holding that in the discretion of the Court the time for appearance under the bond may be continued until a defendant, such as in this case, has been released; the other that the bond is forfeited by non-appearance, even though it is not possible for the defendant to appear because of the fact that he is incarcerated in the State of California. Under that rule, matters of hardship, which may be the occasion to the indemnitors on the surety bond would be, as the district attorney's office now states, immaterial. On the other hand, if you follow the rule that the discretion is in the Court to do as he sees fit about forfeiting his bond, I assume that matters which would appeal to the sympathy of the ordinary individual, even if not to a judge, should be put in evidence, so the Court for the purpose of the record will admit the exhibits.

'At this time the motion for a further continuance is denied on the basis that it is the Court's understanding of the law that it is no excuse, and it gives no rights to the surety on her bond as against the application to forfeit the bond, that the defendant in the present case, the principal on the bond, is held against his will for the commission of a felony in the State of California, which fact makes it impossible for him to answer to his bond in the State of Colorado.'

Intervenors, seeking reversal of the judgment, bring the case to our Court for review by writ of error.

Questions to be Determined.

First: Where a defendant in a criminal case is admitted to bail; while at liberty pending trial he is convicted of a felony committed in another state and is confined in prison in that state when his first case comes on for trial; and because of said imprisonment he cannot appear, pursuant to the condition of the bail bond; shall the surety on said bond be relieved from a forfeiture thereof upon an offer to defray all costs and expenses involved in returning the accused upon completion of the imprisonment which prevented his attendance in the Colorado court?

This question is answered in the affirmative. In People v. Pollock, 65 Colo. 275, 176 P. 329, 330, our Court quoted from the opinion in United States v. Lee, D.C., 170 F. 613, as follows:

"The purpose of a recognizance is not to enrich the treasury, but to serve the convenience of the party accused, but not convicted, without interfering with or defeating the administration of justice. * * *"

In Smith v. People, 67 Colo. 452, 184 P. 372, 7 A.L.R. 392, the opinion of our Court contains, inter alia, the following:

'The enriching of the public treasury is no part of the object at which the proceeding is aimed.

'There is no reason for penalizing the sureties when it appears that they are unable, by no fault of their own or of their principal, to perform the condition of the bond. Moreover, to produce for trial an insane person would serve no good purpose, as the trial court not proceed. These considerations have been many times recognized by the courts, which have set aside forfeitures and vacated judgments on bail-bonds when the principal has been prevented by death, sickness, or insanity from appearing as required by the bond. Such cases come within the rule which relieves from the obligation of a contract rendered impossible of performance by an act of God.'

In Chase...