State v. Fedrico

• Decision Date: 02 March 1926
• Citation: 132 A. 679
• Parties: STATE v. FEDRICO.
• Court: New Hampshire Supreme Court

132 A. 679

STATE

v. FEDRICO.

Supreme Court of New Hampshire. Strafford.

March 2, 1926.

Transferred from Superior Court, Strafford County; Young, Judge.

Joseph Fedrico pleaded guilty to committing a crime while armed with a pistol, having no permit to carry the same. Transferred on exceptions to the denial of a motion to return forfeited bail. Exceptions overruled.

Indictment under Laws 1923, c. 118, § 2, for committing a crime while armed with a pistol, having no permit to carry the same. The respondent was bound over by the municipal court of Dover, and required to give bond in the sum of $800 for his appearance at the September term, 1924, of the superior court. Cash bail was furnished by Luigi Fazzaro, and the money turned over to the clerk of the superior court. At said September term the respondent was indicted, but did not appear. On the 15th day of September the respondent and Fazzaro were severally called in court and defaulted. Thereupon the bail of $800 was declared forfeited. During the next term of said court (February, 1925) the respondent appeared, and on March 23d pleaded guilty. He was thereupon sentenced to not less than one year and one day nor more than two years in state prison, mittimus not to issue until called for by the county solicitor. Counsel for the respondent and for Fazzaro moved that the default be stricken off, and that the $800 be returned, which motion was denied, and both the respondent and Fazzaro excepted.

Everett J. Galloway, Sol., of Dover, for the State.

J. J. Doherty, of Concord, and Edward Masters, of Boston, Mass., for respondent.

SNOW, J. The forfeiture was judicially declared at the term at which the respondent was obligated to appear, after nonappearance in answer to calls both of the respondent and of the bondsman who furnished the cash bail. The forfeiture thus duly entered of record had the force of a judgment as of that term. P. S. c. 252, § 31; Philbrick v. Buxton, 43 N. H. 462, 463; State v. Walker, 56 N. H. 176, 178; State v. McAllister, 54 N. H. 156, 158. See Belknap County v. Laconia, 116 A. 434, 80 N. H. 251. No irregularities in the proceedings are disclosed by the record, and none have been suggested in argument. In this jurisdiction the power of the court to remit, reduce, or chancer a forfeiture upon a recognizance is purely statutory. Philbrick v. Buxton, 40 N. H. 384, 302, 395 (1860); Laws 1861, c. 2497, § 2; Gen. St. c. 241, §§ 10, 11, and later codifications. The motion, made at the subsequent term, that the default be stricken off, and that the cash bail be returned, was therefore addressed to the judicial discretion of the trial court under the statute. P. S. c. 252, §§ 30, 32, 33, and 35. Its denial carries an implied finding of fact that justice does not require the remission of the forfeiture. As the record does not purport to state all the facts or the evidence upon which the motion and Its denial are based, the only contention open here to the proponents of the motion, stated most favorably to them, is that the appearance of the respondent and his...