Mahaney v. State

• Decision Date: 10 February 1925
• Docket Number: 12549.
• Citation: 233 P. 725,106 Okla. 152,1925 OK 109
• Parties: MAHANEY et al. v. STATE.
• Court: Oklahoma Supreme Court

233 P. 725

106 Okla. 152, 1925 OK 109

MAHANEY et al. v. STATE.

No. 12549.

Supreme Court of Oklahoma

February 10, 1925

Syllabus by the Court.

An application of sureties to discharge forfeiture of bail bond is addressed to the sound judicial discretion of the court under section 2927, C. O. S. 1921.

Held, under record herein, the court erred in refusing to discharge forfeiture.

Commissioners' Opinion, Division No. 2.

Appeal from District Court, Kiowa County; Thomas A. Edwards, Judge.

Proceeding by the State against A. L. Mahaney and another. From an order overruling the application to set aside forfeiture on bail bond, defendants appeal. Reversed, with directions.

Geo. L Zink, of Hobart, for plaintiffs in error.

John T Hays, of Hobart, for the State.

ESTES C.

On July 28, 1920, Daniel Roberts was charged by information with forgery, arraigned in August, entered not guilty plea, and thereafter released on bail of $1,000, signed by himself as principal and by plaintiffs in error as sureties. The cause was assigned for trial on January 8, 1921, and came on for trial on the 27th of that month; same being an adjourned session of the prior term of December court. Defendant not appearing, judgment of forfeiture on his bond was entered. Bench warrant issued, and on February 1st, following, Roberts was brought before the court at the same adjourned term explaining that his failure to appear theretofore was because he received no notice of the assignment of his case and had no knowledge thereof. He then withdrew his said plea and entered his plea of guilty, and on the same day was sentenced to one year in the penitentiary and soon thereafter was incarcerated. On the 23d of the same month, being an adjourned session of the same term of court, the said sureties filed their verified application to set aside the order of forfeiture; matters therein contained being supported by affidavits and not controverted as follows: That J. G. Hughes was attorney for Roberts in said criminal case, and some time before the last assignment thereof, Roberts, being employed by an oil company, was living at Graham, Tex.; that Roberts wrote his attorney advising his post office address with his street number, stating that he had moved to Texas, the original of which letter was attached to the application; that thereafter said attorney wrote Roberts advising of the assignment of the case; that Roberts did not receive this letter, copy being attached; that the deputy sheriff under said bench warrant found Roberts at Graham, and Roberts stated at the time that he had no notice of the setting of the case; that Roberts waived extradition and returned with the sheriff to Oklahoma willingly; that said sureties had not, in any manner, been notified or indemnified against loss as sureties; that they offered to pay the expenses of the officer serving the warrant and all other sums the court might deem just. The court entered an order...