United States v. Craft, Crim. A. No. 8266.

• Court: U.S. District Court — Southern District of West Virginia
• Writing for the Court: H. D. Rollins, Charleston, W. Va., for Summit Fidelity & Insurance Co., petitioner
• Citation: United States v. Craft, 162 F.Supp. 578 (S.D. W.Va. 1958)
• Decision Date: 04 June 1958
• Docket Number: Crim. A. No. 8266.
• Parties: UNITED STATES of America v. Keener Ken CRAFT.

162 F. Supp. 578

UNITED STATES of America v. Keener Ken CRAFT.

Crim. A. No. 8266.

United States District Court S. D. West Virginia, at Huntington.

June 4, 1958.

Duncan W. Daugherty, United States Attorney, Huntington, W. Va., for the United States.

H. D. Rollins, Charleston, W. Va., for Summit Fidelity & Insurance Co., petitioner.

HARRY E. WATKINS, District Judge.

Petitioner, Summit Fidelity and Surety Company, has moved this Court to relieve it from liability upon a bail bond which has heretofore been ordered forfeited, and upon which judgment in favor of the United States has been taken. The United States has filed an answer to the petition, and hearings have been held on the matter, from all of which it appears that there is no dispute as to the following facts:

Keener Ken Craft was arrested July 17, 1956, on a charge made against him in this District, and on that date executed a penal bond in the amount of $1,000 with the petitioner as surety, conditioned upon Craft's appearance from time to time in this Court. An indictment for a felony was returned against Craft by the October, 1956, Grand Jury of this Court, and on October 17, 1956, Craft made an appearance in this Court. Craft's attorney was unable to appear here on that date, having been injured in an automobile accident, and Craft's case was continued until December 5, 1956, with the bond continuing in full force and effect. Craft failed to appear in this Court on December 5, 1956, whereupon the bail bond was ordered forfeited. Judgment was entered thereon on May 10, 1957.

On November 20, 1956, Craft was indicted for a felony in the United States District Court for the Eastern District of Michigan, Southern Division, at Detroit, Michigan, on an entirely different offense from that for which he was under indictment in this Court. On December 3, 1956, Craft appeared in the District Court at Detroit, entered a plea of guilty, and was released on bond. At that time, Judge Thomas P. Thornton was apprised of Craft's need to return to West Virginia two days later, but Judge Thornton admonished Craft, in the presence of his attorney, not to leave the Eastern District of Michigan. Judge Thornton advised the Assistant United States Attorney who was handling the case at Detroit that if any repercussions should arise from Craft's failure to appear in West Virginia, the matter should be clarified through the Justice Department in Washington, D. C.

Petitioner urges that since Craft was unable to leave Michigan because of Judge Thornton's action, his failure to appear in Huntington, West Virginia, in this Court on December 5, 1956, was excusable and the forfeiture should be vacated. The United States asserts that since Craft was not incarcerated on the date he was due in this Court, his failure to appear was willful, and that petitioner's evidence fails to establish any valid ground for the remission of the bond forfeiture.

The power of a District Court to set aside or remit a forfeiture is found in Rule 46(f) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.:

"(1) Declaration. If there is a breach of condition of a bond, the district court shall declare a

...