People v. Havey

• Decision Date: 29 May 1968
• Docket Number: 1374,No. 3,Docket Nos. 1373,3
• Citation: 11 Mich.App. 555,161 N.W.2d 785
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernie T. HAVEY, Defendant, and United Bonding Insurance Company, an Indiana corporation, Appellant. The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John EGAN, Defendant, and United Bonding Insurance Company, an Indiana corporation, Appellant
• Court: Court of Appeal of Michigan — District of US

Page 785

161 N.W.2d 785

11 Mich.App. 555

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernie T. HAVEY, Defendant, and United Bonding Insurance Company, an Indiana corporation, Appellant.

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John EGAN, Defendant, and United Bonding Insurance Company, an Indiana corporation, Appellant.

Docket Nos. 1373, 1374.

Court of Appeals of Michigan, Division No. 3.

May 29, 1968.

Released for Publication Oct. 24, 1968.

Joseph J. Jerkins, Kalamazoo, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Donald A. Burge, Pros. Atty., Kalamazoo County, Kalamazoo, for appellee.

Before BURNS, P. J., and QUINN and ZIEM, ^* JJ.

BURNS, Presiding Judge.

The United Bonding Insurance Company appeals from judgments entered upon forfeiture of bonds in the now consolidated case of People v. Havey and People v. Egan. The facts of these 2 controversies differ substantially, but the legal principles involved are identical. Consequently, a statement of facts as to one case provides a sufficient outline for understanding why the other case is disposed of in the same manner.

John Egan was arrested for uttering and publishing ¹ and was taken before a municipal judge. Defendant waived examination and was released after filing a recognizance on which the appellant is surety. The recognizance required the defendant to appear in circuit court on the first Monday following the date of the return, i. e., January 25, 1965. ² The record next shows that the information was filed in circuit court on February 8, 1965. On February 11, an order forfeiting bail was signed by the circuit judge. An order to show cause why bond should not be forfeited issued, and after a hearing on that order the judge, by written opinion, found as fact that 'the defendant did not appear in court on the 25th and in fact has never been in the circuit court for this county.' The record, however, is silent as to what happened on January 25. At any rate, appellant's and appellee's briefs agree that the prosecuting attorney did not call the case in circuit court on January 25, and the clerk did not docket the case for that day. Since there is no dispute on these facts, we will assume the validity of the parties' statements of facts for the sake of argument. The question thus becomes: Is a surety released from its charge over an accused when the prosecution or the circuit court does not schedule defendant's arraignment for the time specified in a magistrate's return?

At the outset we hasten to point out that a magistrate's return in no way controls the docket of the circuit court or the actions of the prosecuting attorney in processing cases in circuit court. A magistrate simply does not possess this power. A magistrate's authority is limited to binding over to circuit court the criminally accused who waive examination or who have become implicated in a crime by a finding of probable cause. C.L.1948, § 766.13 (Stat.Ann.1954 Rev. § 28.931).

The relevant conditions of Egan's recognizance were that he appear in court on a day certain (January 25) and that defendant not depart from court without leave. United Bonding had notice of these conditions when its agent affixed his signature to the recognizance. Notwithstanding this notice, the record fails to show that defendant appeared on January 25, or that if he did appear he departed therefrom with leave of the court. On such a record, we have no alternative but to find a breach of the conditions of the...