State v. Gonzalez, A--102

Decision Date13 October 1961
Docket NumberNo. A--102,A--102
Citation174 A.2d 209,69 N.J.Super. 283
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Juan Jose GONZALEZ, or Juan Jose Gonzales, Defendant, and Peerless Insurance Company, a New Hampshire corporation authorized to do business in New Jersey, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Sylvan G. Rothenberg, Paterson, for appellant (Robert Goodman, Paterson, attorney).

Archibald Kreiger, Legal Asst. to Prosecutor, Paterson, for respondent (John G. Thevos, Passaic County Prosecutor, Paterson, attorney).

Before Judges GOLDMANN, FOLEY and LEWIS.

The opinion of the court was delivered by

FOLEY, J.A.D.

This is an appeal from a judgment against the defendants on a recognizance of bail, in which one Jose Gonzalez was principal and Peerless Insurance Company was surety. Only Peerless appeals.

On July 8, 1959 Gonzalez was taken into custody on a concealed weapon charge (N.J.S. 2A:151--41, N.J.S.A.), and bail in the amount of $2,500 was set by the Municipal Court of Paterson. Gonzalez, as principal, and Peerless, as surety, executed a recognizance of bail, and defendant was released on July 11, 1959. Inadvertently, approval of the bailpiece was not endorsed thereon. This irregularity was discovered on November 6, 1959 when defendant was arraigned before the Passaic County Court. Thereupon, the County Court judge remanded defendant to custody pending rectification of the formal defect in the bailpiece. The recognizance was approval and endorsed by the magistrate, and on November 10, 1959 defendant was again released. When the case was called for trial on March 8, 1960 Gonzalez did not appear and the bail was declared forfeited. Thereafter, the court granted the State's motion for judgment made pursuant to R.R. 3:9--7. Hence this appeal.

It appears from the judgment that the defense to the action below was based entirely on the claim that the failure of the magistrate to endorse his approval of the instructment nullified appellant's obligation thereon. The County Court held:

'* * * that the recognizance was proper and legal as a voluntary bond despite omission of approval by the Magistrate, and that it was not materially changed or altered, and that under all the circumstances the said recognizance was in full force and effect, valid and legal; * * *'

This appeal originally came on for oral argument on June 19 of this year. Appellant, in its brief, at that time stated that the only question involved on appeal was:

'Did the defective bail piece constitute a discharge of the bail?'

For reasons which are inapposite to the proceeding in its present stage, we concluded that the appellant's brief, in form and substance, was inadequate to enable us to intelligently determine the issue presented. We ordered the briefs suppressed and directed that a proper brief be filed, granting leave to the State to answer it.

In the brief which has since been filed by the appellant it is stated that the sole question involved is:

'Did the incarceration of the principal upon discovery of the omission of approval by the Magistrate operate as a surrender of the principal and therefore a discharge of the surety?'

This obviously represents a complete shifting of position from that taken before the County Court in resistence of plaintiff's motion for judgment. Moreover, it reveals a substantial infraction of the rule which requires that 'if the questions involved include any not presented to the court below, this fact shall be noted. The foregoing requirements are to be considered in the highest degree mandatory, admitting of no exception; * * *' R.R. 1:7--1(c).

However, since neither of the questions, as stated, has been previously considered by our courts, both will be determined herein.

I.

N.J.S. 2A:8--27, N.J.S.A., provides for holding to bail, and the officials authorized to do so are set forth as follows:

'Any judge of a county court, county district court or criminal judicial district court, or any clerk or deputy clerk thereof may, within the county wherein an offender may be apprehended, or any magistrate of a municipal court, any clerk or deputy clerk thereof, any officer authorized by section 2A:8--28 of this Title to take bail, the chief of police or other person acting in that capacity in any municipality and the police officer in responsible charge of the police station may, within the municipality wherein an offender may be apprehended, administer or take any oath, acknowledgment, complaint or affidavit to be used in the proceeding, issue warrants and summonses, endorse warrants from other counties, and upon arrest hold the accused to bail, the offense with which he is charged being bailable, for his appearance before the Superior Court, the County Court, the county district court, any criminal judicial district court or any municipal court, in the county at such time as he may direct.'

The statute is implemented by the revised rules. R.R. 8:9--1 provides:

'All persons, except those charged with treason, murder, kidnapping, manslaughter, sodomy, rape, arson, burglary, robbery or forgery, shall before conviction be bailable by sufficient sureties by a magistrate; * * *' R.R. 8:9--2 provides:

'(a) In the absence of the magistrate, a person arrested and charged with a criminal offense which is not an indictable offense and which may be tried by the magistrate, may, before his appearance before the magistrate, be admitted to bail by the clerk of the court; and in the absence of the magistrate and the clerk, may be admitted to bail by any other person authorized by law to admit persons to bail other than the arresting officer, designated for such purpose by the magistrate.

'(b) In any case in which the magistrate may admit to bail, the magistrate may designate the taking of the recognizance by the clerk or any other person authorized by law to take recognizances other than the arresting officer, in the amount fixed by the magistrate.'

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10 cases
  • Com. v. Stuyvesant Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 10, 1975
    ...Co. v. United States, 29 F.2d 92, 97 (9th Cir. 1928); Miller v. State, 158 Ala. 73, 48 So. 360 (1909). Cf. State v. Gonzalez, 69 N.J.Super. 283, 288-289, 174 A.2d 209 (1961). In the instant case, the January 14 default established the liability of the surety to pay the face amount of the bo......
  • State v. Bonds
    • United States
    • Vermont Supreme Court
    • June 12, 2015
    ...Taylor,83 U.S. at 369; Commonwealth v. Stuyvesant Ins. Co.,366 Mass. 611, 321 N.E.2d 811, 815–16 (1975); State v. Gonzalez,69 N.J.Super. 283, 174 A.2d 209, 212 (Ct.App.Div.1961). There is disagreement, however, as to whether forfeiture is appropriate where the act of law is of another state......
  • Hughes v. Lipscher
    • United States
    • U.S. District Court — District of New Jersey
    • September 8, 1989
    ...and issue oaths and affidavits. N.J. S.A. 2A:8-27; see State v. Ruotolo, 52 N.J. 508, 511, 247 A.2d 1 (1968); State v. Gonzalez, 69 N.J.Super. 283, 174 A.2d 209 (App.Div.1961); State v. Johnson, 23 N.J. Super. 296, 92 A.2d 808 (App.Div.1952). The importance of the municipal court in handlin......
  • State v. Rice
    • United States
    • New Jersey County Court
    • November 24, 1975
    ...a contract, and where executed by a surety amounts to a contract between that surety and the State. State v. Gonzalez, 69 N.J.Super. 283, 291, 174 A.2d 209 (App.Div. 1961); 8 Am.Jur.2d, Bail & Recognizance, § 59. As such, the traditional rules of contract law are applicable. The recognizanc......
  • Request a trial to view additional results

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