State v. Owens

• Citation: 84 N.W. 529,112 Iowa 403
• Parties: STATE v. OWENS ET AL.
• Decision Date: 19 December 1900
• Court: United States State Supreme Court of Iowa

112 Iowa 403

84 N.W. 529

STATE

v.OWENS ET AL.

Supreme Court of Iowa.

Dec. 19, 1900.

Appeal from district court, Hardin county; J. R. Whittaker, Judge.

This is an appeal from a ruling on the application of one J. L. Perry, asking that the sum of $300 in money, deposited as bail for the appearance of M. Evans to answer two indictments found against him by the grand jury of Hardin county, be returned. Application denied. Affirmed.Bryson & Bryson, for appellant.

Milton Remley, Atty. Gen., Chas. A. Van Vleck, Asst. Atty. Gen., and E. H. Lundy, Co. Atty., for the State.

DEEMER, J.

A preliminary information was filed before a justice of the peace of Hardin county, accusing defendants, Owens and Evans, of the crime of keeping a gambling house. They appeared to that information, and, waiving examination, were held to answer to the grand jury, their bail being fixed at $300 each. The justice thereupon made this record on his docket: “Now, on this day, July 1, 1898, the defendants deposited a check for $600 made by J. L. Perry upon the Exchange Bank, Parkersburg, Iowa, payable to John C. Crockett, clerk of the district court, or bearer, in lieu of bail bond, and they were released. C. Burling, J. P.” The check referred to in this entry was indorsed, “J. C. Crockett, Clerk,” and bore the “Paid” stamp of the bank on which it was issued, dated “July 2, 1892.” The sheriff made the following receipt, under date of July 1, 1892: “Received of J. L. Perry check on the State Exchange Bank of Parkersburg, to be used, if honored by drawee, as and in lieu of bail of Will Owens and M. Evans for their appearance to the next term of the district court of Hardin county, Iowa. A. W. Mitterer, Sheriff, by Lem Harris, Deputy.” Thereafter the grand jury returned two indictments against defendant M. Evans alone, on each of which bail was fixed at $600. Thereafter defendant Evans filed an application for reduction of bail, and in this application stated that, if bail was reduced, “the money in the hands of J. C. Crockett, belonging to J. L. Perry, will be deposited with the clerk in lieu of bail.” Perry also filed a written statement of consent, providing, in substance, that the said sum of $600 alleged to belong to him, then in the hands of the clerk, might be held in lieu of bail, provided the said sum was accepted in full of bail in both cases. This motion was submitted to court, and an order made reducing the bail, and providing that: “The said defendant may be released from confinement by depositing with the clerk the sum of $300 in cash in said cases ($600 in the aggregate); such sum to be received and held by the clerk in lieu of bail bond, as provided by chapter 39, tit. 25, of the Code. Dated September 27, 1898.” On January 19, 1899, defendant Evans pleaded guilty to the crime charged in one of the indictments, and judgment was rendered that he pay a fine and costs; and on the same day the defendant filed an application asking the court to require the clerk to apply so much of the $300 deposited as cash bail as might be necessary to satisfy the judgment rendered against him. The county attorney made a like motion on the same day, and produced a certificate from the clerk showing that there was in his possession $300 in cash, deposited in lieu of bail. In the meantime, however, and on January 10, 1899, Perry filed a motion for the release of the cash bail that he claimed to have deposited, on the ground that he had surrendered the defendant to the sheriff, who then held him (defendant) in his custody. Attached to this motion was a certificate from the sheriff stating that Perry had presented a copy of his consent to the taking of the money in lieu of bail, and a copy of the order of the court directing the clerk to accept the deposit in lieu of bond; that Perry had demanded that he (the sheriff) hold defendant Evans in his custody, and that the said $300 in cash be surrendered to him. He also certified that he had Evans in his custody in the jail of Hardin county on another charge, and that he would retain him, on the request and direction of Perry, after the expiration of the time of commitment, on the warrant under which he then held him, if so ordered by the court. To this certificate was attached a notice from Perry to the sheriff, under date of January 10th, to the effect that he had surrendered Evans to him (the sheriff). Attached to this notice was the consent of Perry made to the court on the application for reduction of bail, and the order of court thereon, to which reference has heretofore been made. In October of the year 1898 the defendant Evans, through his attorney, served notice on the county attorney, to the effect that a notice (sic) was on file, asking for the return of the money deposited, on the ground of the surrender of the defendant as shown by certificate attached thereto. Attached was this certificate: “I, A. W. Mitterer, sheriff of Hardin county, do hereby certify that on this day J. L. Perry, the depositor of money as bail for the defendant M. Evans, in the above-entitled cause, pursuant to section 5530 of the Code of Iowa, brought the defendant M. Evans to me, and surrendered him to me, as sheriff of Hardin county, Iowa, and I have received him, and he is now confined in the county jail. Eldora, Iowa, October 25, 1898. A. W. Mitterer, Sheriff Hardin County, Iowa.” A hearing was had on the motion filed by the county attorney to apply the money deposited to the payment of fine and costs, and on the application of Perry for the return of the money to him; and the court sustained the motion of the county, and overruled the one made by Perry. Perry excepted, and the appeal is from these rulings.

Some evidence was introduced in support of and in resistance to these motions. This evidence discloses the fact that the clerk held the money in his possession at the time of trial; that he was unable to say just where he obtained it, but that it was deposited in lieu of bail for the appearance of dedendant; and that the fine and costs imposed on defendant Evans had not been paid. It also appears that Perry was solicited to furnish bail for defendants at the time the preliminary information was filed, and that he furnished the check for $600, whereby the money was obtained, and that his check was accepted in lieu of bail. It also appears that defendant has done nothing towards surrendering himself to the sheriff, but that he was at the time of the hearing in the custody of the sheriff, under a warrant of commitment issued in another case; and the sheriff says “that he would continue to hold him by reason of the attempted surrender made by Perry.”

Turning now to the law, we find that, in the absence of statute, money cannot be taken in lieu of bail. Butler v. Foster, 14 Ala. 323; City of Columbus v. Dunnick, 41 Ohio St. 602;State v. Lazarre, 12 La. Ann. 166; U. S. v. Faw, 1 Cranch, C. C. 486, Fed Cas. No. 15,078; Dean v. Com., 1 Bush, 20;Smart v. Cason, 50 Ill. 195. Our statute provides that “the defendant may at any time, * * * instead of giving bail, deposit with the clerk * * * the sum mentioned in the order” (admitting him to bail). It further provides that “when money has been deposited by the defendant * * * the clerk under the direction of the court shall apply the money in satisfaction of so much of the judgment as is required by the payment of money.” There are also provisions for the substitution of money in place of bail, and for the substitution of bail in the place of money. See Code, §§ 5524-5527, inclusive. There are also provisions for the surrender of the defendant...