United States v. Capua, 6217.

• Decision Date: 26 January 1938
• Docket Number: No. 6217.,6217.
• Citation: United States v. Capua, 94 F.2d 292 (7th Cir. 1938)
• Parties: UNITED STATES v. CAPUA et al.
• Court: U.S. Court of Appeals — Seventh Circuit

94 F.2d 292 (1938)

UNITED STATES v. CAPUA et al.

No. 6217.

Circuit Court of Appeals, Seventh Circuit.

January 26, 1938.

James R. Fleming, U. S. Atty., of Fort Wayne, Ind., Luther M. Swygert, Asst. U. S. Atty., of Hammond, Ind., and Alexander M. Campbell, Asst. U. S. Atty., of Fort Wayne, Ind., for appellant.

Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

The government appeals from an order of the District Court dismissing a writ of scire facias issued upon its petition, wherein it sought to recover the penalty upon a defaulted bail bond in the sum of $1,000 executed by defendants as sureties.

This bond called for the appearance in court of the principal, one Crema, who had been indicted for violation of the National Prohibition Act, 27 U.S.C.A. § 1 et seq. The petition, filed on December 19, 1932, averred that the bond was given August 25, 1932; that the cause was called for trial on the 23d day of November, 1932; and that the principal was thereupon defaulted for failure to appear and the bond forfeited. After issuance and service of the writ, the sureties filed their written motion to dismiss, alleging that their principal was one of four defendants charged jointly with the violation of the National Prohibition Act; that at the trial on November 26, 1932, the defendants tried were found not guilty; that the sureties had not been able to find their principal and were advised that he had left the country and gone to Italy; that the indictment against the principal was dismissed on the 6th day of March, 1934; and that the default on the bond and all liability thereon were nullified by the repeal of the Eighteenth Amendment to the Constitution. The defendants urged also that the court should dismiss the scire facias under the discretion granted by the Acts of Congress. The motion was sustained and the cause dismissed.

The question of liability of the sureties must be determined by the condition existing at the time of the default. The judgment of forfeiture was a final judgment, at least to the extent of an adjudication of default for breach of conditions of the recognizance. The scire facias proceeding merely continued the forfeiture proceedings, in so far as the adjudication or forfeiture was concerned, and, if the sureties were legally liable under the facts and conditions as they existed at the time of the forfeiture, the fact that the criminal proceedings were thereafter dismissed is no defense to the scire facias. Detroit Fidelity & Surety Company v. United States, 8 Cir., 59 F.2d 565; United States v. Sulvani, D.C., 4 F.Supp. 775.

The repeal of the Eighteenth Amendment to the Constitution of the United States, subsequent to the forfeiture, did not nullify the liability of the sureties. The default occurred on November 23, 1932, and the National Prohibition Act, the basis of the prosecution, continued in force until the adoption of the Twenty-first Amendment to the Constitution on December 5, 1933. The sureties were bound immediately upon the principal's default. When the condition of the bail bond was broken by the failure of the principal to appear, they became the debtors of the United States for the amount of the penalty. The subsequent repeal of the law upon which the prosecution was based and under which the bail was given, in no wise released them from liability. United States v. Mack, 295 U.S. 480, 55 S.Ct. 813, 79 L.Ed. 1559; LaGrotta v. United States, 8 Cir., 77 F.2d 673, 103 A.L.R. 527; National Surety Company v. United States, 8 Cir., 78 F.2d 407; United States v. Russo, D.C., 7 F.Supp. 391.

The Act of Congress defining the conditions under which the court may exercise discretion in granting relief to the sureties, 18 U.S.C.A. § 601, is as follows: "When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no willful default of the party, and that a trial can, notwithstanding, be...