State v. Anderson

• Decision Date: 08 April 1903
• Citation: 94 N.W. 208,119 Iowa 711
• Parties: STATE OF IOWA, Appellee, v. WALTER ANDERSON, Appellant
• Court: Iowa Supreme Court

94 N.W. 208

119 Iowa 711

STATE OF IOWA, Appellee, v. WALTER ANDERSON, Appellant

Supreme Court of Iowa, Des Moines

April 8, 1903

Appeal from Wapello District Court.--HON. ROBERT SLOAN, Judge.

REVERSED.

Jaques & Jaques for appellants.

Chas W. Mullan, Attorney General, and C. A. Van Vleck, Assistant Attorney General, for the State.

OPINION

THE opinion states the case.--Reversed.

WEAVER J.

The defendant Walter Anderson was indicted for a felony, and his bail fixed at $ 1,500. Instead of giving bail in the usual form, defendant executed an individual bond for that amount; and his father, Walter F. Anderson, secured it by depositing $ 1500 of his own money in the hands of the clerk who receipted to him for it, and defendant was thereon released. On September 20, 1902, the defendant was convicted and sentenced to a term of imprisonment in the penitentiary, and to pay the costs of the prosecution, taxed at $ 476. At the same time an order was executed fixing the amount of bail on appeal at $ 3,000. Within a few days thereafter an appeal was taken and perfected to this court. On September 30, 1902, Anderson, Sr., appeared in court, and, upon a showing that the son had surrendered himself in execution of the judgment against him, asked for a release and return of the deposit in the clerk's hands. This motion was opposed by the county attorney, who claimed the money was liable to be applied to the payment of the judgment against the son for c sts. On October 3, 1902, the son filed an appeal bond in the sum of $ 3,000, with Frank Reno as surety; and afterward on the same day the court made an order sustaining the application of Anderson, Sr., for the release of the money deposited by him, and directing the clerk to return it, as demanded. This order was complied with, and later on the same day the surety on the appeal bond surrendered the defendant Walter Anderson to the sheriff, who received the prisoner, and gave the surety a receipt accordingly. Thereupon Reno, upon showing of such surrender and receipt, moved the court for an exoneration of his bond, which application was followed by a motion upon the part of the state for an order requiring the refunding of the $ 1,500 originally deposited by Anderson, Sr. In support of this motion, and in resistance to the motion to discharge the bond signed by Reno, it was alleged that the giving of the appeal bond was a fraudulent device adopted for the purpose of releasing the money. The trial court sustained the position taken by the state, and vacated the order releasing the deposit, directed the return of the money by Anderson, Sr., and ordered that the bond given by Reno be not exonerated until he returned or caused to be returned into court the sum of $ 476, the amount of the costs adjudged against the prisoner. To this entry the court attached the following provision: "This order is not in any way intended to affect the defendant's right to have said money all returned to him upon going in good faith on appeal bond as required by law, and upon so doing he will be entitled thereto as provided by law." From these rulings and orders, Walter F. Anderson and Reno appeal.

The statute provides that, after an order admitting to bail, the defendant, instead of giving bail, may deposit with the clerk a sum of money equal to the bail required, and, upon delivery of the clerk's certificate of such deposit to the officer having him in custody, he shall be discharged. Code, section 5524. It is further provided that after such deposit has been made, and before any forfeiture thereof, the defendant may still furnish bail in the ordinary manner, and upon so doing the court shall order the clerk to refund the money so placed in his hands. Section 5526. By the next following section it is directed that where money has been deposited by defendant, if it remain on deposit at the time judgment is rendered against him, the clerk shall, under the direction of the court, apply the same in satisfaction of so much of the judgment as requires the payment of money, and refund the surplus, if any, to the defendant, "unless an appeal be taken to the Supreme Court and bail put in, in which case the deposit shall be returned to the defendant." Sections 5528 and 5529 provide a method by which the sureties upon a bail bond may "at any time before forfeiture of their undertaking surrender the defendant in their exoneration," and section 5530 allows a defendant who has deposited money in lieu of bail to surrender him self to the custody of the proper officer, and thus release the deposit.

The case chiefly relied upon by the appellee to sustain the order of the court below (State v. Owens, 112 Iowa 403, 84 N.W. 529) is not controlling upon the questions here presented. Owens having been arrested for a misdemeanor, one Perry deposited money with the sheriff, in the nature of bail, but without authority of law. Later an indictment was returned, and an order made fixing bail. Owens applied to the court for an order reducing the amount of bail required, and proposing, in lieu thereof, to deposit the money then in the sheriff's hands. Accompanying the application was a written consent by Perry that the money be so used by Owens. The application was granted, and the money was deposited, and remained in the clerk's hands until after Owens had been convicted and a fine assessed. Thereafter Perry undertook to surrender the defendant into custody, but did not take the proper statutory steps therefor. We there held that in view of the statute, and the order of the court made with Perry's express consent, the money should be considered as having been deposited by the defendant, and subjected to the payment of the judgment against him. Here, however, we have a deposit made by a third person; we have also an appeal from the judgment of conviction to this court, with bail in the amount required; and we have the release and return of the money deposited as the statute directs shall be done under such circumstances. Code, section 5527. In this condition of affairs, the surety upon the appeal, following the strict form of law, surrenders the defendant to the sheriff in execution of the judgment, and demands the exoneration of his bond. This right is denied him unless he complies with a condition imposed by the court, requiring him to return or cause to be returned into court the sum of $ 476, which fund may again be released and refunded upon "going in good faith on appeal bond as required by law." This order is sought to be justified upon the proposition that the surrender of the defendant so quickly after the bond was given, and after the order refunding the money was entered, clearly indicates that the bail was not furnished in "good faith," but for the mere purpose of securing the release of the money. But is this reason sufficient to sustain the refusal to exonerate the bond? The surety has, under the statute, an absolute right "at any time" before the forfeiture of the bond to surrender the defendant and be released. Code section 5528. That right becomes perfect the moment the bond is accepted and the defendant discharged from custody, and continues until a forfeiture of the undertaking has been declared or the conditions of the bond have been performed. If we are to say that a surrender within an...