United States v. Burl, 16240.

• Decision Date: 30 July 1946
• Docket Number: No. 16240.,16240.
• Parties: UNITED STATES v. BURL et al.
• Court: U.S. District Court — Eastern District of Illinois

67 F. Supp. 583

UNITED STATES v. BURL et al.

No. 16240.

District Court, E. D. Illinois.

July 30, 1946.

William W. Hart, U. S. Dist. Atty., of East St. Louis, Ill., for the United States.

Ray Hendricks and Robert Rutledge, both of East St. Louis, Ill., for petitioner Mose Allen.

WHAM, District Judge.

For a general statement of the case I quote the first paragraph of the memorandum filed herein by the United States Attorney: "Abraham Burl was indicted and Mose Allen executed bond on which he was released. At the time of his indictment in this Court, Burl was then at liberty on a bond given in a state case in Missouri. After his release on bond in this District he returned to Missouri where he lived and his bondsman there caused him to be surrendered and he was sentenced on the charge there pending. He was in jail in St. Louis and therefore did not appear when his case was called in this Court and his bond was forfeited, and motion for judgment on the recognizance in the amount of $2,000.00 was filed. On behalf of the surety, Mose Allen, a petition for remission of the penalty was filed setting up the fact that Burl was in jail in St. Louis awaiting trial when due to appear here for trial, and that therefore his default was not willful. An amendment to the petition later filed showed that after serving a sentence in St. Louis, Burl appeared in this Court and was sentenced but execution was suspended and he was allowed probation." A stipulation of the facts filed as evidence at the hearing supports the foregoing statement.

The stipulation and the record in the case show further facts which are pertinent: Defendant Burl, in January, 1944, was arrested in St. Louis on a charge of larceny and was released on bond for appearance on said charge which was pending in the Circuit Court of St. Louis, Missouri; at the time he was indicted and at the time he was released on bond in this court. The federal offense with which he was charged in the indictment in this court was committed on March 24, 1944, while he was at large on the St. Louis bond. Burl was arrested by federal officers in St. Louis on April 1, 1944, on a complaint filed in this district and in due course was removed to this district by order of the United States District Court, Eastern District of Missouri entered on April 4, 1944. Burl, as principal, and Mose Allen as surety, entered into the recognizance for appearance before the United States Commissioner in this district on April 10, 1944. Burl was indicted in this district on May 15, 1944, and was released on bond for $2,000 with Mose Allen as surety, which bond is the basis of this proceeding. Burl appeared before this court and entered a plea of guilty on June 6, 1944. Imposition of sentence was deferred to June 12, 1944, pending presentence investigation by the court's probation officer. On June 12, Burl, having been arrested in St. Louis by the surety on the prior bond given for his appearance in the Circuit Court in St. Louis, failed to appear in this court on June 12, 1944, and a forfeiture was entered on his bond. He was thereafter convicted on said charge in the St. Louis court, served his sentence and was immediately thereafter returned to this court for disposition.

It is the contention of the surety that the default of the principal was not willful and for that reason and by reason of the further facts that Burl later appeared for sentence in this court and the government suffered no injury this court may and in its discretion should allow a remission of the penalty of the bond in whole or in part.

Under the applicable statute (U.S. C.A. Title 18, sec. 601) the court is given discretion to remit the whole or part of the penalty only when it appears (1) "that there has been no willful default of the party," (2) "that a trial can, notwithstanding, be had" and (3) "that public justice does not otherwise require the same penalty to be enforced." United States v. Reed et al., 5 Cir., 117 F.2d 808; United States v. Nordenholz, 4 Cir., 95 F.2d 756. Under the controlling decisions which have interpreted and applied the above statute it gives the court discretion to remit the whole or part of a penalty only when there has been no willful default upon the part of the principal. That the surety or sureties on the bond may have exercised good faith and diligence in their efforts to produce the principal in court pursuant to the conditions of the bond, that the principal may have appeared after default for trial or other disposition of his case and that the government suffered no injury gives the court no discretion under the statute to remit the whole or any part of the penalty of the bond, if the default of the principal was willful within the meaning of the statute. Taylor v. Taintor, 83 U.S. 366, 16 Wall. 366, 21 L.Ed. 287; Continental Casualty Co. v. United States, 314 U.S. 527, 530-532, 62 S.Ct. 393, 86 L.Ed. 426; United States v. Capua et al., 7 Cir., 94 F.2d 292.

The facts here show that Burl, as soon as he was released after serving the sentence imposed against him by the Missouri state court to which he was already under bond at the time he gave bond to this court, was brought before this court so that, notwithstanding his default, sentence might be imposed or other disposition made of his case and the facts further show "that public justice does not otherwise require the same penalty to be enforced." The single and controlling question, therefore, is whether or not Burl, the principal in the bond, was guilty of a willful default when he failed to appear in this court on June 12, 1944.

Counsel for the government frankly admit, and quite properly so under the evidence, that the default of the principal Burl was not willful in the sense that it was intentional. It was not his idea and it was not his will that the surety on his Missouri bond should seize and surrender...