People v. Bennett

• Decision Date: 17 January 1893
• Citation: 32 N.E. 1044,136 N.Y. 482
• Parties: PEOPLE v. BENNETT.
• Court: New York Court of Appeals Court of Appeals

136 N.Y. 482

32 N.E. 1044

PEOPLE

v.BENNETT.

Court of Appeals of New York.

Jan. 17, 1893.

Appeal from common pleas of New York city and county, general term.

The recognizance of Gus Johnson, charged with larceny, was declared forfeited for nonappearance of defendant, and judgment was entered against Nathan J. Bennett, the surety. From an order (without opinion) denying a motion to vacate the judgment, Bennett appeals. Affirmed.

Code Crim. Proc. § 593, under which the judgment was entered, provides: ‘If, without sufficient excuse, the defendant neglect to appear for arraignment or for trial or judgment, or upon any other occasion where his presence in court may be lawfully required, * * * the court must direct the fact to be entered upon its minutes; and the undertaking of this bail, or the money deposited instead of bail, as the case may be, is thereupon forfeited.’

Benj. Patterson, ( Benj. Pattersn and George Bell, of counsel,) for appellant.

De Lancey Nicoll, Dist. Atty., ( Henry B. B. Stapler, Asst. Atty. Gen., of counsel,) for the People.

MAYNARD, J.

Under the provision of Crim. Code, §§ 593-595, and of the New York city consolidation act, § 1480, judgment was summarily entered against the appellant, April 1, 1892, in the clerk's office of the county of New York, upon his forfeited recognizance in the general sessions as bail for the defendant in an indictment for grand larceny. The indictment was found March 8th, and on March 19th the appellant was notified that his principal must be produced for trial on the 21st, on which day he was duly called, and failed to appear; and the following entry was then made in the minutes of the court, under the title of the criminal action: ‘[Copy minutes of court.] On indictment. Grand larceny in the first degree. Filed March 8, 1892. The defendant not appearing, and Nathan J. Bennett, his surety, not bringing him forth, to answer to this indictment, pursuant to the conditions of their recognizance, on motion of the district attorney, it is ordered by the court, that the said recognizance, together with a certified copy of this order, be filed in the office of the clerk of the city and county of New York, and that judgment be entered thereon, according to law, against the said Gus Johnson, the defendant above named, and the said Nathan J. Bennett, his surety, for the several sums set forth in said recognizance. On motion of the district attorney, ordered by the court that the defendant stand committed to the custody of the warden of the city prison, until thence delivered by due course of law.’ The principal witness for the people was a nonresident of the city, and was then confined in the house of detention to secure his presence at the trial. When it became known that the defendant in the indictment had made default, this witness sued out a writ of habeas corpus, and March 28th. The term of the court at which the principal failed to appear expired March 31st. April 1st the appellant surrendered his principal in open court, and he was thereupon committed to the city prison, from which he was afterwards discharged, upon his own recognizance, on account of the inability of the people to procure the attendance of the complainant. No order was entered at any time remitting the forfeiture or in exoneration of the bail; but after the surrender of the principal, and his commitment, an order was entered on April 1st, entitled in the action, containing the same recitals as the entry in the minutes of March 21st, and the further statement that, ‘on motion of the district attorney, it is ordered by this court that the said recognizance be, and the same hereby is, forfeited.’ There was also the same direction as in the minutes in regard to the filing of the recognizance and of a copy of the order and the entry of judgment thereon. It may be assumed that it was upon the filing of a copy of this order with the recognizance that the judgment was entered. The surety made a motion at the general term of the common pleas for an order vacating the judgment, and remitting the forfeiture of the recognizance, which was denied, and an appeal taken to this court.

The sole question to be determined is whether the clerk had jurisdiction to enter the judgment, and, so far as there may be any conflict in the statements contained in the papers read upon the motion, the affidavits and papers filed by the people...