Shetsky, Application of, 35737

Citation60 N.W.2d 40,239 Minn. 463
Decision Date19 June 1953
Docket NumberNo. 35737,35737
PartiesApplication of SHETSKY. SHETSKY v. HENNEPIN COUNTY et al.
CourtSupreme Court of Minnesota (US)

Syllabus by the Court.

1. The terms Recognizance and Surety bond are used interchangeably in our statutes without regard to the technical distinction between them.

2. The power vested in the trial court in connection with the right of action given under M.S.A. § 629.59 is cumulative rather than exclusive of the inherent powers of courts at common law to grant relief from bail forfeiture.

3. In the absence of a statutory time limitation, the inherent power of a trial court to remit or mitigate for a surety a forfeiture of bail may be exercised not only before a final order of forfeiture and before the payment of the bail money into the public treasury But also thereafter upon a showing of good cause if such remission or mitigation can be made without prejudice to the state.

4. The purpose of a recognizance or bail bond is to secure the attendance of the accused in order that all questions touching upon his guilt Or innocence may be determined, and, therefore, it follows that in a proceeding for the mitigation of a bail forfeiture the criminal guilt or innocence of the accused is wholly immaterial.

5. The purpose of bail is to relieve the accused of imprisonment and the state of the burden of detaining him pending the trial and at the same time, by placing him in the protective custody of a surety--a jailer of his own choosing--, to insure his presence for trial at the call of the court without in any way delaying, impairing, or unduly burdening the administration of justice or in any manner prejudicing the state in its prosecution.

6. The burden of proof to establish a justification for a mitigation of forfeited bail rests upon the applicant.

7. A wilful default under a bail bond means the wilful default of the principal--the defendant--and not of the surety.

8. The question of the credibility and the sufficiency of the evidence as to the cause of the defendant's flight from the jurisdiction and of his subsequent failure to appear until he was forcefully apprehended is to be decided by the trial court in the light of all the surrounding facts and circumstances, and its decision will not be disturbed except for an abuse of discretion.

Kleve J. Flakne, Minneapolis, John Ott, Minneapolis, of counsel, for appellant.

Michael J. Dillon, County Atty., and Per M. Larson, Asst. County Atty., Minneapolis, for respondents.

MATSON, Justice.

Petitioner appeals from an order denying his petition and motion to vacate an order forfeiting bail money. We are basically concerned with the following question: Where the defendant in a criminal action, who is free on bail, wilfully flees from the jurisdiction in the course of his trial and does not return until almost 18 months later when he is apprehended and brought back by agents of the Federal Bureau of Investigation and where the surety upon his bail bond at the time of his flight elected to purge itself of all further liability under the bond By doing nothing more than paying the penalty sum of the bond into court pursuant to M.S.A. § 629.58, is it an abuse of discretion for the trial court to deny the petition of the surety--or of the defendant as the assignee of the surety's rights--for the setting aside of the court's order of bail forfeiture and for a partial refund of the bail money, When the defendant is acquitted in a subsequent trial?

Petitioner, Rubin Shetsky, was indicted by the grand jury of Hennepin county for the crime of second degree murder for the shooting of Albert Schneider. He was arrested and arraigned, and he pleaded not guilty. On August 6, 1945, Shetsky, as principal, and Western Surety Company, as surety, executed a bail bond in the penal sum of $20,000 to secure Shetsky's appearance for the trial. The trial upon the indictment began on September 10, 1945, with Shetsky in attendance; but before the state's case against him had been completed, Shetsky voluntarily fled the jurisdiction. On September 24, 1945, the district court entered an order adjudging the bail forfeited. On October 10, 1945, the Western Surety Company (hereinafter called the surety company), pursuant to § 629.58, petitioned and moved the district court for an order authorizing and directing it to pay into the court the amount forfeited under the bail bond and to be forever discharged of its obligation. Notice of this motion and an order to show cause why such motion should not be granted was served upon the attorneys for Shetsky who, however, did not appear to contest the motion. On October 11, 1945, the district court issued an order authorizing and directing the surety company to pay the $20,000 to the clerk of the district court. The surety company complied with the order on the date of its issuance, and the clerk of the district court paid the money to the treasurer of Hennepin county on October 31, 1945.

The trial continued in Shetsky's absence, and the jury returned a verdict of guilty. The defendant was sentenced In absentia to life imprisonment.

Shetsky remained a fugitive from justice until March 1947 when he was apprehended in California by agents of the Federal Bureau of Investigation, and subsequently he was delivered to the state prison at Stillwater, Minnesota. During the period that he was a fugitive from justice, Shetsky kept himself concealed in various cities of the United States and Mexico; used false or assumed names; and made no attempt to comunicate with his attorney, the district court of Hennepin county, or law enforcement officials. After being returned to this state, he remained incarcerated in the state prison at Stillwater until 1949 when this court determined in a habeas corpus proceeding that sentencing him In absentia denied him the protection of due process of law; accordingly, it was ordered that he be returned to Hennepin county for resentencing. State ex rel. Shetsky v. Utecht, 228 Minn. 44, 36 N.W.2d 126, 6 A.L.R.2d 988.

After being resentenced to imprisonment for life, he moved for a new trial which motion the trial court denied but this court granted. State v. Shetsky, 229 Minn. 566, 40 N.W.2d 337. After getting the venue of the trial changed to McLeod county, he was tried and found not guilty on May 25, 1950.

On November 29, 1950, the surety company 'For value received' assigned to Shetsky all its rights to the bail money which it, pursuant to the district court's order, had paid in to the clerk of court of Hennepin county on October 11, 1945. Shortly thereafter, Shetsky petitioned the district court of Hennepin county under § 629.59 to vacate the order of September 24, 1945, forfeiting the bail money and to remit the bail money less expenses and disbursements incurred by the county in apprehending and returning him to Minnesota. The district court denied Shetsky's petition. On appeal to this court we held that the district court did not have jurisdiction to rule on the merits and should have dismissed the petition since the petition had not been served upon the party (the county) having possession of the bail money. In re Application of Shetsky for Return of Bail Money, 234 Minn. 416, 48 N.W.2d 518.

On August 25, 1951, Shetsky again filed a petition for vacation of the order forfeiting the bail money and for remission of the bail money. For purposes of this proceeding, petitioner admitted that his flight from this state was voluntary but urged that certain mitigating circumstances existed which entitled him to return of the bail money. In their essence these circumstances were that he left his state because threats upon his life were communicated to him during the time he was in attendance at his trial and because he was not getting a fair trial in that certain witnesses gave false testimony against him. The county of Hennepin opposed the granting of Shetsky's petition on the grounds (1) that the assignment from surety company transferred nothing to Shetsky since the surety company had no right to a return of the bail money in that (a) it voluntarily paid in the money under § 629.58 and therefore could not avail itself of the remission provision of § 629.59 and (b) because it had done nothing to justify a return to it of the bail money and (2) that Shetsky's allegations that he fled (a) because his life was threatened and (b) because he was not getting a fair trial were not true.

A hearing followed, and on October 25, 1951, the district court found that petitioner's flight from the state was wilful and made with intent to defeat the administration of justice; that he had established no valid justification for his absence; that he returned only because he was forcibly apprehended; and that the surety had made no effort whatsoever to find, apprehend, or return Shetsky during his absence. The court concluded that Shetsky was not entitled to a return of the bail money in whole or in part and, accordingly, denied his petition and motion. From that order this appeal is taken.

Ancillary to the basic issue of whether, in the exercise of a sound judicial discretion, an accused, who is ultimately acquitted in his subsequent trial but who has obstructed the administration of justice by wilfully fleeing from the jurisdiction in the course of his first trial and not returning until he is forcibly apprehended many months later, is entitled to a remission of bail forfeited and paid under § 629.58, we have the following subsidiary issues:

(1) In the absence of an action brought under § 629.59, does the trial court have inherent discretionary power to remit in whole or in part bail money paid by the surety under § 629.58 in discharge of its liability?

(2) After a final order is made for the payment of bail money and after the payment of the same into the public treasury, does the trial court have jurisdiction to remit or mitigate the forfeiture?

(3) Is the ultimate guilt or...

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