State v. Benedict
| Decision Date | 28 July 1944 |
| Docket Number | 46499. |
| Citation | 15 N.W.2d 248,234 Iowa 1178 |
| Parties | STATE v. BENEDICT et al. |
| Court | Iowa Supreme Court |
Peter W. Janss, and Ted Sloane, both of Des Moines, for appellant.
John M. Rankin, Atty. Gen., Wm. F. McFarlin, Asst. Atty. Gen., and Dale Ewalt, Co. Atty., of Indianola, for appellee.
On March 19 1942, defendant Benedict was indicted for child desertion the court ordered a bench warrant issued for his arrest and fixed his bail at $1,000. On November 9, 1942, the sheriff arrested defendant, he appeared with his attorney, waived arraignment, pleaded guilty and asked for immediate sentence. On the same day he changed his plea of guilty to not guilty. On the next day a bail bond was filed, signed by Benedict and appellant Daisy E. Johnson as surety.
On November 18, 1942, the case was reached for trial, a jury was present and ready to hear it. Benedict's attorney was present and stated he was unable to locate his client. 'I don't feel he has informed me properly of his whereabouts.' The attorney asked leave to withdraw his appearance but the court denied such leave. Defendant was duly called in open court but failed to appear. His failure to appear was entered of record, his bail was ordered forfeited and the sheriff was directed to give notice to Benedict and appellant to appear and show cause why judgment should not be entered for the amount of the bail.
As originally announced by the court in the presence of Benedict's attorney, the show cause hearing was set for December 4 1942. Apparently, however, the required notices were not given in time for that date and on March 17, 1943, a new order was made for notice to defendant and appellant of a hearing to be had on April 12, 1943, to show cause why judgment should not be entered for the amount of the bail. This notice was given but neither defendant nor appellant appeared and judgment was entered against them for the $1,000.
On June 11 1943, the sixtieth day after the entry of judgment, appellant filed her motion to set aside the judgment on the ground that Benedict had been in the armed forces of the United States since May 11, 1943. The motion quotes section 103(3), U. S. Soldiers' and Sailors' Civil Relief Act of 1940, as amended October 6, 1942, section 513(3), 50 U.S.C.A. Appendix. This motion was amended on September 8, 1943, to state that: appellant made diligent search for Benedict immediately after the trial was set in November, 1942, but did not succeed in locating him till May 17, 1943; thereafter appellant caused Benedict to allocate some of his pay to the support of the children for whose desertion he was indicted; appellant offers to produce defendant upon his discharge from the army or on leave, to stand trial, within a reasonable time; appellant has paid the costs incurred since defendant's release on bond.
On October 20, 1943, hearing was had on appellant's motion to set aside the judgment. Benedict was not present. Appellant's husband, the only witness, testified that: he first knew in November, 1942, that defendant had not appeared for trial; defendant worked with a construction crew; numerous efforts to locate him proved unavailing until after he had been inducted into the army on May 11, 1943. Appellant's motion to set aside the judgment was overruled. The lower court found there was n adequate explanation for defendant's failure to appear for trial and for the lack of knowledge of his whereabouts from November, 1942, until May, 1943. The court concluded that section 103(3) of the Soldiers' and Sailors' Relief Act did not entitle appellant to relief because defendant was not inducted into the service until nearly six months after the forfeiture of the bond and one month after the entry of judgment. The appeal is from this ruling.
The Iowa statutes here involved are sections 13631 to 13636, chapter 631, Code 1939. Insofar as applicable, they provide:
'13631. Entry. If the defendant fails to appear for arraignment, trial, or judgment, or at any other time when his personal appearance in court is lawfully required, * * * the court must at once direct an entry of such failure to be made of record, and the undertaking of his bail, * * * is thereupon forfeited.
'13632. Notice to show cause. As a part of the entry of forfeiture * * *, the court shall direct the sheriff of the county to give ten days notice in writing, or otherwise, * * * to the defendant and his sureties to appear and show cause, if any, why judgment should not be entered for the amount of such bail, * * *.
Appellant seeks to have the judgment set aside under the terms of section 13636. She contends here that she is entitled to a reversal because of section 103(3) of the Soldiers' and Sailors' Civil Relief Act which provides: 'Whenever, by reason of the military service of a principal upon a criminal bail bond the sureties upon such bond are prevented from enforcing the attendance of their principal and performing their obligation the court shall not enforce the provisions of such bond during the military service of the principal thereon and may in accordance with principles of equity and justice either during or after such service discharge such sureties and exonerate the bail.'
Appellant places no reliance upon any other provision of the Relief Act.
The question presented is whether by reason of Benedict's military service appellant was prevented from enforcing his attendance and performing her obligation. The 'obligation' to which the Relief Act refers seems plainly to be the sureties' obligation under the bond. No other meaning of this term is suggested.
The bond signed by appellant is in substantially the form set out in section 13616, Code 1939. In the bond the obligors 'hereby undertake that said defendant shall appear in said court and answer said indictment and abide the orders and judgments of said court, and not depart without leave of same; or if said defendant fail to perform either of these conditions we will pay to the state of Iowa $1,000.'
Appellant's obligation under this bond was that defendant should appear in court and answer the indictment, abide the orders and judgments of the court, and not depart without its leave. '* * * the purpose of a bail bond is to secure the presence of the one charged in court when his presence is required in order to answer to the charge for which the bond is given.' State v. Clark, Iowa, 11 N.W.2d 722, 724. 'The very essence of the obligation assumed by the sureties upon a bail bond is that they will produce the accused in open court in accordance with the terms of the bond * * *.' State v. Hamilton, 196 Iowa 998, 1002, 192 N.W. 838, 839; State v. Arioso, 207 Iowa 1109, 1113, 224 N.W. 56; State v. Clark, supra.
Benedict was not inducted into the military service until almost six months after he was required by his bond to appear for trial. When he failed to appear for trial, there was a breach of his bond, it was forfeited and appellant's liability was then fixed. State v. Kraner, 50 Iowa 575, 577; State v. Scott, 20 Iowa 63, 66; 6 Am.Jur. 116, § 175; 8 C.J.S., Bail, p. 169, § 85. Benedict's subsequent military service in no way prevented appellant from performing the obligation under her bond to have defendant in court at the time of trial. That service did not commence till after a judgment was entered which had 'the same force and effect as any other judgment of such court.' Code, § 13633. See also State v. Baldwin, 78 Iowa 737, 36 N.W. 908; State v. Bryant, 55 Iowa 451, 8 N.W. 303. The conclusion is thus unavoidable that section 103(3) of the Relief Act does not entitle appellant to a reversal.
The most that can be claimed is that defendant's military service prevented appellant from delivering him to the custody of the sheriff as a condition to relief which might be granted in the discretion of the court, under section 13636. The showing that appellant was prevented even from so doing is far from satisfactory. The only evidence on the question is that a few days after defendant was inducted on May 11 1943, appel...
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