People v. Johnson

• Decision Date: 31 August 1964
• Docket Number: No. 20688,20688
• Parties: The PEOPLE of the State of Colorado, Plaintiff in Error, v. Roman JOHNSON, Evorn Stafford, Ray Galindo, and Stuyvesant Insurance Co., Defendants in Error.
• Court: Colorado Supreme Court

Page 19

395 P.2d 19

155 Colo. 392

The PEOPLE of the State of Colorado, Plaintiff in Error, v. Roman JOHNSON, Evorn Stafford, Ray Galindo, and Stuyvesant Insurance Co., Defendants in Error.

No. 20688.

Supreme Court of Colorado, En Banc.

Aug. 31, 1964.

Duke W. Dunbar, Atty. Gen., John E. Bush, Asst. Atty. Gen., Bert M. Keating, Dist. Atty., Gregory A. Mueller, Asst. Dist. Atty., William J. Chisholm, Deputy Dist. Atty., Denver, for plaintiff in error.

Richard D. Greene, Patricia W. Wotkyns, Denver, for defendant in error Ray Galindo.

HALL, Justice.

The People of the State of Colorado are here seeking to have reviewed proceedings had in the trial court in furtherance of the forfeiture of an appearance bond.

From the record before us it would seem that on November 11, 1961, an information was filed in the District Court of the City and County of Denver, Criminal Action No. 49018, wherein the designated defendant in error, Stafford, and one Roman Johnson were charged with the crime of robery. (Johnson, here designated as a defendant in error, is in no manner connected with the bond forfeiture proceedings and should not have been designated.)

On November 22, 1961, Stafford, as principal and the defendant in error Stuyvesant Insurance Company (herein referred to as Stuyvesant), executed and tendered to the clerk of the court a bond or recognizance in the 'Penal sum of * * * $2500.00 * * *' conditioned that Stafford

'* * * personally be and appear at the * * * Court * * *, on the 24th day of NOVEMBER, A. D. 1961, at 9:00 A.M. and from day to day * * *, and not depart the Court without leave, * * * until the final disposition of the case, * * *.'

This bond or recognizance was filed with and approved by the clerk of the court.

Presumably Stafford did not appear on November 24, 1961. No one sought to offer any reason or excuse for his absence. There is nothing in the record to indicate that, at that time, the district attorney or the court made note of or did anything with reference to Criminal Action No. 49018 or with reference to the nonappearance or bond of Stafford.

On May 24, 1962, six months after the date fixed for Stafford's appearance, the district attorney apparently suggested to the court that steps should then be taken to forfeit Stafford's bond. From the record it appears that on May 24, 1962, proceedings were had whereby:

'* * * EVORN STAFFORD, being now three times solemnly called in open Court comes not, but herein wholly makes default. And the said Ray Galindo, Power of Attorney for Stuyvesant Insurance Company, Surety, being now three times solemnly called in open Court to produce the body of * * * EVORN STAFFORD, principal, and save his recognizance comes not, but herein wholly makes default.

'Whereupon IT IS ORDERED * * * that the said * * * STAFFORD, hath broken the conditions of his said recognizance and that the same be taken as forfeited.' (Emphasis supplied.)

At that time and as a part of the order of forfeiture, the court directed

'* * * that an Alias Capias Issue for EVORN STAFFORD * * *, returnable forthwith. And this is accordingly done.'

From the record it appears that on February 7, 1963, the trial court, Hon. William H. Luby, District Judge of the Fifth Judicial District, presiding, entered its two-pronged order 'At this day, by agreement of Counsel' (Emphasis supplied) (Who are counsel or whom they represent is not disclosed):

(a) 'IT IS ORDERED * * * that the hearing set this date be * * * vacated * * * as * * * STAFFORD, is in County Jail awaiting trial.'

(b) '* * * IT IS FURTHER ORDERED * * * that the Bondsman, GALINDO BONDING COMPANY * * * is, ordered to pay the sum of * * * ($1,097.10) into the Registry of the Court.' (Emphasis supplied.)

From the record it next appears that on February 13, 1963, the trial court, Hon. Edward J. Keating presiding, conducted a hearing at which William Chisholm, deputy district attorney, appeared for the People, and Richard D. Greene appeared as counsel for Galindo Bonding Agency. Testimony was taken, arguments presented and, at the close thereof, the trial judge made certain oral observations, following which on February 13, 1963, the trial court entered an order as follows:

'At this day comes Bert M. Keating, * * * and Ray Galindo, for the Galindo Bonding Company, by his Attorney, Richard D. Greene, also comes.

'Whereupon, this cause comes on for hearing on Sheriff's Costs.

'Whereupon, evidence is taken, and the Court being now sufficiently advised in the premises

'IT IS ORDERED * * * that the Galindo Bonding Company * * * pay * * * [$731.78] into the Registry of the Court instead of * * * [$1097.10], as heretofore ordered. [By Hon. William H. Luby on February 7, 1962, 'by agreement of Counsel'].

'IT IS FURTHER ORDERED * * * that * * * filing a motion for a re-hearing is hereby dismissed [dispensed?] with * * *.

'IT IS ORDERED * * * that the Statutory time for Appeal in this cause is hereby granted.'

On February 18, 1963, the trial court entered an ex parte order directing that the bond be released.

The People are here by writ of error and urge two grounds for reversal and remand:

'A. Trial court erred in not requiring the bondsman, Galindo, to enter a petition to become a party to the criminal proceedings.

'B. Trial court erred in not requiring the bondsman, Galindo, to pay the Sheriffs' salaries in returning the Defendant Stafford to Denver, Colorado.'

The record before us discloses that for a period of one year, two months and twenty-four days the trial court, functioning through at least five judges, two of whom were called in from great distances and at great expense to the People, entered thirteen orders. The last of said orders is here presented for review. Not one of said orders is proper or legal.

Stafford, a defendant being prosecuted by the People, was under orders to be in court on November 24, 1961, at 9:00 A.M CRS '53, 45-1-3, provides:

'It shall be the exclusive duty of the district attorney to collect forfeited recognizances and turn the money so collected into the county treasury.'

The district attorney should have, at the appointed time, been present in court representing the People in the prosecution of Stafford and, in the event of Stafford's failure to appear, to be in readiness to perform his statutory duties in connection with the forfeiture of Stafford's bond, thus protecting the interests of the People. Proper time for forfeiture of the bond of a nonappearing defendant (no reason or justification for his nonappearance being presented) is on the day and hour specified in the bond for appearance.

To delay forfeiture proceedings for six months, or for any period of time (except for good reason shown), is unwarranted and jeopardizes the rights of the People, and may well leave with defendants and sureties the impression that bonds are of minor importance and may be ignored with slight danger of any appreciable adverse effect on them.

It is difficult to understand how in these proceedings, neither the court nor the district attorney ever sought to acquire any jurisdiction over, or paid any attention to, Stafford or Stuyvesant, but showered all of their attention on 'Bondsman Ray Galindo, Power of Attorney for Stuyvesant Insurance Company,' 'Bondsman, Ray Galindo,' 'Bondsman Galindo Bonding Company,' 'Galindo Bonding Agency.'

Ray Galindo, no matter how he is described or characterized, is not a bondsman in this case; he is not a party to this litigation; he is not accountable for Stafford's appearance or nonappearance. Not being obligated, he is not in default; he owes no money, and no valid judgment could be entered against him.

After an order has been entered declaring a bond forfeited, such an order being in the nature of a declaration of default or...