State v. Super, 41265
| Decision Date | 27 September 1968 |
| Docket Number | No. 41265,41265 |
| Citation | 281 Minn. 451,161 N.W.2d 832 |
| Parties | state of Minnesota, Respondent, v. LeRoy SUPER, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Minn.St. 631.01 gives to the trial court discretionary power to determine whether to proceed to trial when a defendant charged with a misdemeanor is not present but is represented at trial by counsel. In this case the trial court did not abuse its discretion in refusing to proceed to trial when defendant, charged with a misdemeanor and free on bail, did not personally appear at trial although represented by counsel.
2. The bail system seeks to reconcile a defendant's interest in pretrial liberty with the need for assurance that he will return for trial by making his release conditional on his providing financial security for his appearance.
Under the circumstances of this case, the refusal on the part of the municipal trial court to reinstate the cash bail bond must be affirmed.
Michael J. Fitzgerald, Minneapolis, for appellant.
Keith Stidd, City Atty., Robert J. Alfton, Asst. City Atty., Minneapolis, for respondent.
Writ of certiorari to review an order of the Hennepin County Municipal Court dated January 25, 1968, wherein petitioner, LeRoy Super, was charged with criminal contempt of court, for failure to be present when the charge of simple assault against him was called for trial, and bail of $200 previously furnished by petitioner was ordered to be forfeited.
The petition for the writ was made upon the ground that petitioner was in court through his counsel pursuant to Minn.St. 631.01 and was prepared for trial on the misdemeanor charge, and upon the further ground that the court was advised by petitioner's counsel that petitioner claimed the benefit of § 631.01, which states in part:
'* * * If the charge against the accused be a misdemeanor, the trial May be had in the absence of the defendant, if he shall appear by counsel; but, if it be for a felony or gross misdemeanor, he shall be personally present.' (Italics supplied.)
On February 5, 1968, a hearing on the charge of contempt was held and the court found that petitioner was not in contempt but his $200 bail was not reinstated. On the same date, $35 more bail was required to be posted to insure petitioner's presence at the trial which was rescheduled at that time.
The legal issues presented are: (1) Does § 631.01 give the trial judge of the Hennepin County Municipal Court discretionary power to proceed or not to proceed when the defendant is not present but is represented at trial by counsel? (2) Does a trial court have the power to forfeit the bail of a defendant charged with a misdemeanor who does not appear at the time fixed by the court for his personal appearance and attendance at trial?
1. Petitioner claims that one who is charged with a misdemeanor may choose to appear through counsel and trial may then be had in the absence of the defendant. Petitioner cites State v. Reckards, 21 Minn. 47, as the only case on the point at issue in Minnesota. In Reckards we said (21 Minn. 50):
Petitioner here interprets this as holding that the accused has the right not to be present in court when charged with a misdemeanor and contends that the court in this case denied him that right. It is clear from reading the Reckards decision that Mr. Justice Berry, when he used the words '(t)he right, however, is that of the accused' was directing that statement to supplement the words 'the accused shall enjoy the right * * * to be confronted with the witnesses against him.' The decision did not state that the right not to be present in court where the charge is a misdemeanor is the right of the accused. What it did state was that 'even an indictment for misdemeanor May be tried in the absence of the defendant, if he appear by counsel.' (Italics supplied.)
The state contends that the phrase 'the trial May be had in the absence of the defendant' in § 631.01 places with the trial court the discretionary power to proceed or not to proceed with the trial. This issue has never been before this court and has been presented to an appellate court in but few instances. Those courts which have construed similar statutes have substantiated the state's contention.
In Souther v. Reid (E.D.Va.) 101 F.Supp. 806, the plaintiff brought a civil action against a county judge for damages on the ground that his arrest because of his failure to appear personally on a misdemeanor charge was (101 F.Supp. 807) 'a denial to him of the due process of law in transgression of the Civil Rights Act, 8 U.S.C.A., § 43.' In granting a summary judgment in the defendant's favor, the court noted that an attorney had appeared for the plaintiff in the criminal proceedings, but stated (101 F.Supp. 807):
In Warren v. State, 19 Ark. 214, 217, the Arkansas statute provided that a defendant may appear 'either personally or by his counsel' for a misdemeanor offense. The trial court refused to allow the attorney to appear for his client and revoked the security or bail. The attorney, who was also defendant's surety, appealed the forfeiture. The Arkansas court stated (19 Ark. 217):
'* * * (I)t is purely a matter of discretion with the Court, before which a criminal prosecution for a misdemeanor is depending, whether the defendant shall or shall not be permitted to answer to the indictment by attorney or agent, without personally appearing in Court himself, to be exercised or not, according to the circumstances in each particular case; and, it being a matter of sound discretion in the Court, cannot be controlled or reviewed by this Court, on error or appeal.'
The Arkansas court followed the Warren case in Bridges v. State, 38 Ark. 510, 511, wherein the trial court had refused to allow an attorney to try the case in defendant's absence and revoked the bail bond, stating:
'The court below, in the exercise of its discretion, declined to permit appellant to be tried in his absence, and in matters of discretion, there is no review on appeal except in cases of abuse.'
In Owen v. State, 38 Ark. 512, 513, under a similar set of facts, the court held:
In State v. Garland, 67 Maine 423, the defendant failed to appear for trial. The defense attorney wanted to proceed but the court refused. The court, in upholding the trial court, said (67 Maine 426):
'* * * Thus, by all the authorities, while it is held discretionary with the court to permit the trial to proceed in the defendant's absence, it is only a matter of discretion and will be permitted only for urgent reasons * * *.'
In United States v. Shelton (E.D.La.) 6 F.2d 897, the surety on a bail bond sought remittance of the bond after it was forfeited when the defendant failed to appear for trial. The surety argues that the trial could have been held in defendant's absence and that therefore there was no cause to impose the penalty of forfeiture. The court upheld the forfeiture, stating (6 F.2d 900):
'* * * (A) trial in his absence would be absolutely contrary to all general principles and practice, and would be illegal, null, and void.'
In the State of California the corresponding statute provides in part (California Penal Code, § 1043):
'The defendant must be personally present at the trial; provided, that in case of a misdemeanor charge, if he absents himself with full knowledge that a trial is to be or is being had, the trial may proceed in his absence.'
Prior to 1951, it also provided that whenever a defendant's presence was necessary for the purpose of identification the court could, upon application of the district attorney, require his personal attendance. Thus, in Carroll v. Police Court, 66 Cal.App. 66, 225 P. 35, the court upheld a bail forfeiture where defendant failed to comply with the court's order that he appear personally.
Where the misdemeanor offense is before a police or municipal court rather than a district court, the California statute does not apply and the defendant must always appear. 1 The California statute referred to appears to be dissimilar to Minn.St. 631.01 in that if the defendant has 'full knowledge' that a trial is to be had the trial may proceed in his absence. The court, however, would still be the determiner of 'full knowledge' and therefore 'consent,' though none of the opinions cited discusses discretion.
In Cole v. State, 35 Okl.Cr. 50, 54, 248 P. 347, 348, the court, interpreting a statute similar to the California statute, stated:
'* * * In a misdemeanor case, * * * where the punishment may be...
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