Palermo v. United States

• Citation: 61 F.2d 138
• Decision Date: 18 October 1932
• Docket Number: No. 9406.,9406.
• Parties: PALERMO v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

61 F.2d 138 (1932)

PALERMO v. UNITED STATES.

No. 9406.

Circuit Court of Appeals, Eighth Circuit.

August 29, 1932.

Rehearing Denied October 18, 1932.

Harry W. Durall and Samuel Feller, both of Kansas City, Mo., for appellant.

A. B. Lovan, Asst. U. S. Atty., of Kansas City, Mo. (William L. Vandeventer, U. S. Atty., and S. M. Carmean and George H. Hubbell, Asst. U. S. Attys., all of Kansas City, Mo., on the brief), for the United States.

Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.

NORDBYE, District Judge.

This is a proceeding by scire facias on a bond forfeiture in a criminal case entitled "United States v. Harry Schwartzberg." The clerk issued a writ of scire facias as an independent proceeding entitled "United States, Plaintiff, v. Harry Schwartzberg and Frank Palermo, Defendants." The defendant Palermo filed an answer alleging that he should be discharged from his obligations on the bond given for the appearance of Schwartzberg, for the reason that Schwartzberg appeared in court pursuant to the terms of the bond and entered a plea of guilty, and that thereafter, and on account thereof, the appellant as bondsman had no further obligation; that no action for the forfeiture of the bond was declared during the November term of court, and therefore the court had no jurisdiction to declare a forfeiture of the bond or render judgment against the appellant at any subsequent term.

In addition to the answer, appellant filed a motion to dismiss in the nature of a demurrer on the ground that the writ did not state facts sufficient to constitute a cause of action, and further that the recognizance at the time of the forfeiture had no vitality.

Harry Schwartzberg was charged with unlawfully concealing assets of a bankrupt estate in violation of the National Bankruptcy Act of the United States (section 29b, 11 USCA § 52(b). The appellant, Palermo, was surety upon the recognizance of Schwartzberg, the pertinent provisions of which are as follows:

"The condition of this recognizance is such, that if the said Harry Schwartzberg, principal, shall personally appear before the District Court of the United States in and for the Western District of Missouri, on the 24th day of December, 1928, to be begun and held at the city of Kansas City at 9:30 o'clock A. M., and from time to time thereafter, to which this cause may be continued and then and there answer the charge of having, on or about the 29th day of February, A. D. 1928, within said district, in violation of National Bankruptcy Act of the United States, unlawfully concealed assets of bankrupt estate, and then and there abide the judgment of the said court, and not depart without leave thereof, then this recognizance to be void, otherwise to remain in full force and virtue."

The bond was executed on December 18, 1928, and filed December 27, 1928. There was no term commencing December 24, 1928, but the November term was then in existence. On February 19, 1929, during the said November term, Schwartzberg appeared in court waiving arraignment and entered a plea of guilty. Sentence was taken under advisement and deferred from time to time until May 25, 1929, when defendant Schwartzberg was called and failed to appear for sentence. The court ordered forfeiture of the bond and scire facias issued.

The November term had ended before May 25, 1929, and the bond was forfeited during the April, 1929, term, which was the term immediately subsequent to the November term. Certain records of the clerk were incomplete and did not contain all the proper entries of the orders of continuance which had theretofore been made from time to time. On application of appellee, the court found that the clerk of court had "by mistake and inadvertence omitted from the said record certain entries which should have been made or shown by the original minutes of the court and of the clerk." The clerk was directed by the court to make certain entries nunc pro tunc. The only purpose of the order was to correct the record of the court so that it would conform to the facts. No notice of such proceeding was required to be given to the surety. The right of the court to have its records correctly show what occurred cannot be questioned, and we find no merit in appellant's contention that he was prejudiced by this order.

There are only two questions to be considered on this appeal. First, Did the plea of guilty on February 19, 1929, end the liability of the surety on this bond? Second, Did the bond have any vitality during the April, 1929, term, when it was forfeited?

The conditions of a bail bond given in United States courts are generally governed by the laws of the state in which the court is located. Section 591, c. 17, title 18, USCA; National Surety Company v. United States (C. C. A.) 29 F.(2d) 92; United States v. Ewing, 140 U. S. 142, 11 S. Ct. 743, 35 L. Ed. 388. This bond must be construed in light of the language of the following Missouri Revised Statutes 1929:

"Sec. 3486. Bail, When to be Taken. If the offense with which the prisoner is charged be bailable, and the prisoner offer sufficient bail, a recognizance shall be taken for his appearance to answer the charge before the court in which the same is cognizable, on the first day of the next term thereof, and not to depart such court without leave, and thereupon he shall be discharged."

"Sec. 3466. Judgments on Recognizance Shall Not be Defeated, When. No proceeding upon a recognizance shall be defeated, nor shall judgment thereon be prevented or arrested, on account of any defect of form, omission of recital, condition of undertaking therein, neglect of the justice or clerk to note or record the default of any principal or surety at the time or term when such default shall happen, or of any other irregularity, so that it be made to appear from the whole record or proceeding that the defendant was legally in custody, charged with a criminal offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or magistrate at a term or time specified for trial. (R. S. 1919, § 3811.)"

"Sec. 3584. If, without sufficient cause or excuse, the defendant fails to appear for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, according to the condition of his recognizance, the court must direct the fact to be entered upon its minutes, and thereupon the recognizance is forfeited, and the same shall be proceeded upon by scire facias to final judgment and execution thereon, although the defendant may be afterward arrested on the original charge, unless remitted by the court for cause shown." Mo. St. Ann. §§ 3466, 3486, 3584.

The cases bearing upon the liability of bondsmen are legion. Close study must be made of the local statutes and the terms of the bond in order to avoid confusion. The appellant in this case entered into a contract with the government. He became at his own voluntary choice the custodian of the defendant Schwartzberg, instead of the government; and, in order to make his custody effective, he entered into a pecuniary obligation. Now, then, what did he agree to do? First, that the principal, Harry Schwartzberg, should appear on December 24, 1928, and from time to time thereafter to which the case may be continued and answer the charge of unlawfully concealing assets of a bankrupt estate. Second, that the said principal should abide the judgment of the court, third, that the said principal should not depart without leave of the court.

The surety bound himself under this obligation not only to guarantee the appearance of the principal on the date set forth in the bond and the continuance thereof, but also that he should abide the judgment of the court and should not depart without leave thereof.

"Bail bonds vary somewhat in the form of the condition. Some require the principal to `appear and answer to the Information and not depart without leave.' Others contain the further proviso that the principal will `abide the judgment and orders of the court.' Where the bond is drawn in the former terms the principal is not required to abide the judgment and sentence of the Court as his appearance before the Court, together with his entering a plea of guilty to the offense charged in the Information, thereby putting himself in the power and control of the Court, satisfied the conditions of the bond. Where the latter terms are used the obligation does not terminate with conviction but the defendant must abide the judgment thereon and the recognizance is forfeited if he absents himself without being discharged." 3 Ruling Case Law, § 46, p. 40.

"There is a legal requirement for the appearance of the accused after conviction where the condition of the bond or recognizance is not to depart without leave of court or to abide the order and judgment of the court, or both, or that accused shall render himself in execution. * * *" 6 Corpus Juris, p. 1036, § 297.

The appellant cites the case of State v. Charles, 207 Mo. 40, 105 S. W. 609, 13 Ann. Cas. 565. In that case the recognizance provided: "Comes the defendant, Roy Charles, as principal, and Frank Yehle and James A. Charles, as securities, and jointly and severally acknowledge themselves to owe the state of Missouri the sum of one thousand dollars, conditioned that the said Roy Charles shall personally be and appear on the first day of the next term, of this court, to be held at Carrollton, on the third Monday in April next, 1905, to answer and defend the information filed, charging him with embezzlement, and not depart the court without leave, then this recognizance to be void."

The defendant, Roy Charles, appeared on the first day of the April, 1905, term on April 20th, and on that day he waived formal arraignment and entered a plea of guilty. Afterwards, on April...