State v. Foster
| Decision Date | 01 July 1974 |
| Docket Number | No. KCD,KCD |
| Citation | 512 S.W.2d 448 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Larry Dean FOSTER, Defendant-Principal, and David K. Van Hecks, Surety-Appellant. 26705. |
| Court | Missouri Court of Appeals |
Thomas J. Cox, Jr., Kansas City, for surety-appellant.
John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ.
Surety appeals from judgment on forfeiture of the bail bond of defendant.
The facts are undisputed:
Larry Dean Foster was charged with stealing a motor vehicle. On January 7, 1972, he, as principal, and David K. Van Hecke, as surety, executed a bail bond in the sum of $1,500 in favor of the State of Missouri, conditioned upon the personal appearance of Larry Dean Foster in the Circuit Court of Jackson County as required by the order of said circuit court. The cause was set for September 11, 1972, at which time he failed to appear. The court declared a forfeiture of the bond.
On February 22, 1973, the State filed a motion for judgment on bond. On February 23, 1973, the surety filed application to set aside bond forfeiture. On March 30, 1973, a hearing was held on the motions. Defendant did not appear.
David K. Van Hecke, a professional bondsman, as surety, stated he made investigation to locate defendant and found him in the Kansas State Penitentiary in Lansing, Kansas, serving a one-to ten-year sentence. He then requested a detainer from the Sheriff of Jackson County to be placed against defendant. The detainer was placed with the penitentiary against defendant's release. The surety had advised the prosecuting attorney's office of defendant's custody in the Lansing Penitentiary.
Pursuant to Section 222.160, RSMo 1971, V.A.M.S. the defendant had, on March 6, 1973, filed a written request for disposition of the charges against him. Section 222.160 requires that charges be disposed of by the State of Missouri within 180 days of the filing of the request for disposition by defendant; otherwise, they shall be permanently dismissed. The Kansas authorities had executed the offer to deliver temporary custody to Missouri for prosecution.
The trial court overruled surety's motion to set aside bond forfeiture and sustained the State's motion for judgment on bond.
Surety appeals contending,
Failure to appear caused the bond forfeiture pursuant to Section 544.640, RSMo 1969, V.A.M.S., and Rule 32.12, V.A.M.R. Bail bond forfeiture and judgment thereon against surety is a civil action to enforce the surety's contract with the State, and its determination must rest upon the principles of law applicable to actions on contracts. State v. Haverstick, 326 S.W.2d 92 (Mo.1959); State v. Wynne, 238 Mo.App. 436, 181 S.W.2d 781 (1944); Gross v. Gentry County, 320 Mo. 332, 8 S.W.2d 887 (banc 1928); State v. Gross, 306 Mo. 1, 275 S.W. 769 (banc 1924); State v. Stevens, 134 Mo.App. 115, 114 S.W. 1113 (1908). A judgment pursuant to Rule 32.12 is also civil in nature and considered an action to enforce the contract provision of the bond. State v. Virgilito, 377 S.W.2d 361 (Mo.1964).
The purpose of recognizance is is secure the attendance of the defendant. State v. Haverstick, supra. Defendant's bond was conditioned in part that he appear in court as required by said court. Defendant by failing to appear incurred the risk of forfeiture. State v. Haverstick, supra. Implicit in the surety's relationship to the defendant-principal is that the surety incurs the risk of the forfeiture when defendant fails to appear. 50 Am.Jur., Suretyship, §§ 2, 3 (1944). Upon admittance to bail the custody of the defendant is transferred to his sureties. 6 Am.Jur., p. 85, § 93; State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522 (banc 1954); State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927 (1947). Recognizances are not taken to enrich the treasury; their main purpose is the enforcement of the criminal laws and to insure that defendant appear before court when required. State v. Hinojosa, supra.
'The office and purpose of scire facias under § 544.640 are to notify the sureties of the default of the principal 'and afford them an opportunity to show cause why execution should not be awarded against them,' State v. Austin, 141 Mo. 481, 43 S.W. 165, 167, and the function of the motion for judgment under Criminal Rule 32.12 is the same. State v. Hammond, Mo., 426 S.W.2d 84, 86.
State v. Savage, 461 S.W.2d 887, 889 (Mo. banc 1971).
In oral argument, it was stated that the State dropped its only charge pending against defendant within thirty days of the motion hearing to set aside bond forfeiture, from which this appeal is taken.
In this instance the surety had done everything within his capability to produce defendant prior to the entry of judgment on the bond. Surety notified the Jackson County Prosecutor's office of the whereabouts of defendant. He had the Jackson County Sheriff lodge a detainer against the defendant. He also had the defendant himself file the March 6 request for a disposition of the charges pending against him in Jackson County. Surety offered to pay all the costs incurred by the State of Missouri in transporting defendant from Lansing to Jackson County. The only step remaining was to send an officer to Lansing to take custody of defendant in order to produce him for trial in Jackson County.
State of Missouri v. Street, Mo.App., 510 S.W.2d 225 (handed down May 6, 1974), held that if the surety delivers the defendant to the court prior to judgment on the forfeiture of the bond, it is mandatory that the surety by released. The trial judge has no discretion in determining whether to set aside the bond forfeiture in such an instance.
Despite the fact that defendant was not actually produced in open court on the day the motion to set aside forfeiture was heard, the defendant could have been produced at no financial cost to the State of Missouri had the State sent an officer to the Kansas...
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State v. Armstrong
...supra, the surety had sent two detainer warrants to the Oklahoma authorities; again, the surety was not excused. In State v. Foster, 512 S.W.2d 448 (Mo.App.1974) the surety was released: the surety had, himself, located the defendant, had a detainer placed on him, had advised the authoritie......
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State v. Gray, WD
...a technical requirement. State v. Barnett, 628 S.W.2d 917, 920 (Mo.App.1982). This case is easily distinguishable from State v. Foster, 512 S.W.2d 448 (Mo.App.1974), in which the bondsman found the defendant imprisoned in another jurisdiction, requested that a detainer from the sheriff be p......
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State v. Carroll, 26438.
...of "first opportunity" to avoid paying for the return of their principal. I find support for this view in cases such as State v. Foster, 512 S.W.2d 448 (Mo.App.1974). Although Foster also predates section 374.770, it shows, by analogy, the effort that should be required of a surety before i......
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State v. Cummings, A-A
...principal to go into another jurisdiction). The state contends that § 374.770 is a codification of the rule declared in State v. Foster, 512 S.W.2d 448 (Mo.App.1974), and State v. Argonaut Insurance Co., 541 S.W.2d 720 (Mo.App.1976), "that if the defendant is found to be incarcerated in ano......