State v. Baird

• Decision Date: 07 February 1907
• Citation: 89 P. 298,13 Idaho 126
• Parties: STATE OF IDAHO, Respondent, v. IRA BAIRD et al., Appellants
• Court: Idaho Supreme Court

89 P. 298

13 Idaho 126

STATE OF IDAHO, Respondent, v. IRA BAIRD et al., Appellants

Supreme Court of Idaho

February 7, 1907

ACTION ON BAIL BOND-CHANGE IN BOND BY ERASURE AND INTERLINEATION-CONSENT OF SURETIES-CONFLICT IN EVIDENCE-MATERIAL ISSUES-FINDINGS ON-MILEAGE OF WITNESSES RESIDING OUTSIDE OF STATE.

1. Where material alterations have been made in a bail bond, and there is a substantial conflict in the evidence as to whether the sureties consented to such alterations and changes, the finding of the trial court upon that issue will not be reversed on appeal.

2. Such alterations made by the authority or with the consent of the sureties must be accorded the same effect as if made by their own hands, and such alterations do not avoid the bond.

3. Consent to alterations may be proved by parol evidence.

4. Held, that the state sufficiently accounted for the appearance or alteration of said bail bond, and the court was warranted in admitting said bail bond in evidence, under the provisions of section 6030, Revised Statutes.

5. Under the provisions of section 8108, Revised Statutes, which provides for the acknowledgment of the sureties on a bail bond before the court or magistrate, it was not intended to prohibit the justification of the sureties before a notary public or other officer authorized to administer oaths. Under these provisions, the magistrate may refuse to approve a bond, and ought to do so if he has any doubt as to the authenticity of the acknowledgment or justication; but in case he approve the bond so acknowledged, the defendants cannot take advantage of that fact as a defense.

6. Where the court fails to find on all of the material issues made by the pleadings, the judgment must be reversed, unless a finding upon such issues would not affect the judgment entered.

7. The party in whose favor a judgment is rendered is entitled to have costs taxed for mileage of material witnesses actually and necessarily traveled within the state.

(Syllabus by the court.)

APPEAL from the District Court of Seventh Judicial District for Washington County. Hon. Frank J. Smith, Judge.

Action to recover on bail bond. Judgment in favor of the state. Reversed.

Cause remanded with instructions. Costs of this appeal awarded to the appellants.

Ralph P. Quarles, L. M. Pritchard and L. L. Burtenshaw. for Appellants.

The undertaking in the bond as originally executed by the three sureties was for the default or miscarriage of another person, Ira Baird, the principal. The undertaking or promise was in writing as required by our statutes of frauds. But being in writing, its subsequent alterations and changes must also be in writing, to charge the sureties, and subscribed by the parties to be charged. The alterations were material made the instrument different from what it was, and avoided it entirely as against the appellants. The same rule applies to recognizances as to ordinary contracts. (Bishop's New Criminal Procedure, sec. 264i, subsec. 3; Smith v. United States, 2 Wall. 219, 17 L.Ed. 788; Martin v Thomas, 24 How. 315, 16 L.Ed. 689; Mulkey v Long, 5 Idaho 213, 47 P. 949, and authorities there cited; State v. Craig, 58 Iowa 238, 12 N.W. 301; Wegner v. State, 28 Tex. App. 419, 13 S.W. 608; Smith v. Weld, 2 Pa. 54; Dover v. Robinson, 64 Me. 183; Draper v. Wood, 112 Mass. 315, 17 Am. Rep. 92; Rucker v. Howard, 2 Bibb (Ky.), 168; Briggs v. Glenn, 7 Mo. 572; Long v. Mason, 84 N.C. 15; Dewey v. Bradbury, 1 Tyler, 186; Dobyns v. Rawley, 76 Va. 537; Reese v. United States, 9 Wall. 13, 19 L.Ed. 541; Murfree on Official Bonds, sec. 760; McCramer v. Thompson, 21 Iowa 244; State v. Paxton, 65 Neb. 110, 90 N.W. 983; People v. McReynolds, 102 Cal. 308, 36 P. 590; Bishop's New Criminal Procedure, secs. 1382, 1383; Bonding Co. v. Blount, 23 Ky. Law, 1632, 65 S.W. 806.)

The bond on its face showed that it had been changed in material matters after its execution, and other evidence showed it had been done without the consent of one of the sureties, and without the consent of either of them in writing. It showed on its face that it had not only been executed by three sureties, but that it had been verified, after execution by three, and that alterations and erasures had thereafter been made. The evidence explaining was not sufficient. It failed to show that both agreed to it in writing and failed to show that either of them ever intended or agreed to be bound singly. The bond should not have been admitted. (State v. McGonigle, 101 Mo. 353, 20 Am. St. Rep. 609, 13 S.W. 758, 8 L. R. A. 735; People v. Buster, 11 Cal. 215; Spencer v. Houghton, 68 Cal. 82, 8 P. 679; Rev. Stats. 6030.)

The court failed to find upon the question of the rearrest of the defendant, Ira Baird, after the execution of the bond, by the officers of Washington county without the consent of the appellants. This was a material issue in the case, and evidence being introduced to support it on behalf of the appellants, the failure of the court to find upon this issue is reversible error.

The court also failed to find whether the alleged alterations were made or not, and if made, whether the appellants acknowledged the bond after its alteration or not, as required by the Penal Code.

Consider sections 4912, 6035 to 6043, inclusive, and 6139, Revised Statutes, together, and it is palpable that the legislature intended that fees and mileage should only be allowed to witnesses who attend in obedience to a subpoena.

To bring a witness 376 miles and keep him in court two days at a cost of $ 99, when his evidence does not cover one-fourth of a page, and could have been obtained at a cost of say five dollars, is unnecessarily incurring cost, and should not be permitted. (Griffiths v. Montandon, 4 Idaho 75, 35 P. 704; Sess. Laws. 1899, 231, 232; Mylius v. St. Louis F. S. & W. R. Co., 31 Kan. 232, 1 P. 619; Haines v. McLaughlin, 29 F. 70; Clark v. Linnser, 1 Bail. (S. C.) 187; Hopkins v. Waterhouse, 10 Tenn. (2 Yerg.) 230; Hereford v. O'Connor, 5 Ariz. 258, 52 P. 471.)

J. J. Guheen, Attorney General, and Edwin Snow, for Respondent.

The real question in issue is, whether the instrument sued on was altered after it went out of the hands of the parties defendant, or whether it was altered in their presence, or by their consent and with their full knowledge of the changes that were to be made.

The point in controversy is merely a conflict in the evidence. As to the law there can hardly be any question.

"A change made by the authority or with the consent of the party, or in his presence and with his privity, must be accorded the same effect as if made with his own hand; that is, he cannot set it up to avoid liability."

"The assent may be before or after the change is made, and if the change is pursuant to an agreement between the parties, it is immaterial that it was made by one of them after the agreement and in the absence of the other." (2 Cyc. 155, 156, and cases there cited.)

"An alteration made in the presence and with the consent of the party thereto will be held in law as his own act." (Evans v. Foreman, 60 Mo. 449, citing Miller v. Gilleland, 19 Pa. 119; Neff v. Horner, 63 Pa. 327, 3 Am. Rep. 555; Tierman v. Fenimore, 17 Ohio 545; Brown v. Colquitt, 73 Ga. 59, 54 Am. Rep. 867.)

Such consent may be proved by parol evidence, and it is immaterial whether the consent be given before or after the execution of the deed. (Speake v. United States, 9 Cranch, 28, 3 L.Ed. 645; Taylor v. Graves, 4 Ohio Dec. 107; Miller v. Williams, 27 Colo. 34, 59 P. 740; Gunter v. Addy, 58 S.C. 178, 36 S.E. 553; Cleaton v. Chambliss, 6 Rand. (Va.) 86; State v. Paxton, 65 Neb. 110, 90 N.W. 983; Foote v. Hambrick, 70 Miss. 157, 35 Am. St. Rep. 631, 11 So. 567; Phillips v. Crips, 108 Iowa 605, 79 N.W. 373; Martin v. Buffaloe, 121 N.C. 34, 27 S.E. 995; Schmelz v. Rix, 95 Va. 509, 28 S.E. 890; Malaran v. United States, 1 Wall. 282. 17 L.Ed. 594; Bryant v. Bank of Charleston, 107 Tenn. 560, 64 S.W. 895.)

SULLIVAN, J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This action was commenced to recover the sum of $ 1,000 upon a bail bond executed for the appearance of Ira Baird to answer a charge of felony in the district court and alleged in the complaint to have been forfeited, by proper order duly made and entered.

The defendant, Ira Baird, was served with summons, but failed to appear in the action. The other two defendants appeared and answered and set up three defenses. In the first, they denied the execution of the bond sued on; in the second, they alleged that before the order of forfeiture was made the state, through its officers, arrested and took into custody the said Ira Baird without the permission of his sureties; and in the third defense, they alleged that the appellants, together with one P. H. B. Moulton, did on the fifteenth day of April, 1904, execute an undertaking for the appearance of said Ira Baird to answer the charge against him in said criminal action in the penal sum of $ 1,500, and that afterward, and without the knowledge and consent of the defendants, said undertaking was altered and changed by changing the penal sum from $ 1,500 to $ 1,000, and by striking out the name of said Moulton as one of the sureties from the body of the bond as well as from the end thereof, and from out the affidavit of justification; and that the said bond so altered is the identical bond sued on; that appellants never assented to said alterations nor agreed to be bound thereby, and never agreed to be bound as sureties for the appearance of said Ira Baird to answer said charge.

Upon the issues thus made the cause was tried by the court without a jury. The court made findings of fact and entered judgment against the appellants for the penal sum of the bond. The appeal was taken from the...