United States v. Davenport

• Decision Date: 05 June 1920
• Docket Number: 11.
• Citation: 266 F. 425
• Parties: UNITED STATES v. DAVENPORT et al.
• Court: U.S. District Court — Western District of Texas

266 F. 425

UNITED STATES v. DAVENPORT et al.

No. 11.

United States District Court, W.D. Texas, Del Rio Division.

June 5, 1920

Scire facias by the United States against J. C. Davenport and others. On exceptions to writ. Overruled.

Hugh R Robertson, U.S. Dist. Atty., of San Antonio, Tex.

Levy Old and W. D. Love, both of Uvalde, Tex., for defendants.

WEST District Judge.

This suit is based upon the bail bond of F. J. Rheiner, principal together with record forfeiture appearing by a judgment nisi entered March 20, A.D. 1919, in the criminal case. Rheiner's sureties, defendants in this scire facias proceedings, respond to the writs issued. By general and special exceptions they question the legal sufficiency of the bond and judgment. To properly estimate the force of these exceptions it seems necessary to insert in full a copy of the bond and of the record of judgment nisi. The first day of the March term, A.D. 1919, of the court was March 17th. It will be noted that the judgment of forfeiture was taken on March 20, 1919, a day of the regular term; the grand jury having returned an indictment against the principal, Rheiner, and the case formally docketed. The bail bond and judgment nisi are as follows:

The Bond.

'United States of America, Western District of Texas, Del Rio Division.

'Be it remembered, that on this 1st day of February, A.D. 1919 before me, C. W. Hartup, a United States commissioner for the Western district of Texas, Del Rio division, personally came F. J. Rheiner, principal, and J. C. Davenport, F. N. davenport, B. M. Davenport, and T. J. Martin, sureties, and jointly and severally acknowledged themselves to owe the United States of America the sum of seven thousand and five hundred ($7,500) dollars, to be levied on their goods and chattels, land and tenements, if default be made in the condition following, to wit:

'The condition of this recognizance is such that, if the said F. J. Rheiner, principal, shall personally appear before the District Court of the United States in and for the Western District of Texas, on the first day of the March term, 1919, to be begun and held at the city of Del Rio, Texas, at 9 o'clock a.m., and from time to time thereafter to which the case may be continued, and then and there answer the charge of having, on or about the 7th day of December, A.D. 1918, within said district, in violation of section 5209 of the Revised Statutes of the United States, unlawfully, willfully, and fraudulently made false entries in the books of the Uvalde National Bank, of which said bank he, the said F. J. Rheiner, was then and there cashier, said bank being an association incorporated and operating under and by virtue of the national banking laws of the United States of America; and it is further alleged that the accused did forge the names of certain depositors of said bank, and otherwise did misapply and embezzle the moneys, funds, and credits of the aforesaid bank, and then and there abide the judgment of the said court, and not depart without leave thereof, then this recognizance to be void; otherwise, to remain in full force and virtue. (Signed) F. J. Rheiner. J. C. Davenport. F. N. Davenport. B. M. Davenport. T. J. Martin.

'Taken and acknowledged before me on the day and year first above written. C. W. Hartup, United States Commissioner as Aforesaid. (Seal.)'

The Judgment Nisi.

'The United States v. F. J. Rheiner, Principal, and J. C. Davenport, F. N. Davenport, B. M. Davenport, and T. J. Martin, Sureties. March 20, 1919. No. 207.

'This day this cause was called for trial, whereupon came the United States, by their district attorney, but the defendant F. J. Rheiner failed to appear, and thereupon his name was three times distinctly called at the door of the courthouse, and a reasonable time given him after such call was made in which to appear, yet the said defendant came not, but wholly made default; and now J. C. Davenport, F. N. Davenport, B. M. Davenport, and T. J. Martin, sureties on the recognizance of said F. J. Rheiner being also three times called and commanded to bring the body of their principal, the said F. J. Rheiner, came not, but made default.

'And it appearing to the court that the defendant F. J. Rheiner, as principal, together with J. C. Davenport, F. N. Davenport, B. M. Davenport, and T. J. Martin, as sureties, did on, to wit, the 1st day of February, 1919, enter into a recognizance before C. W. Hartup, United States commissioner for the Western district of Texas, at Eagle Pass. Texas, payable to the United States of America, in the penal sum of seven thousand five hundred ($7,500.00) dollars, conditioned that the defendant F. J. Rheiner should make his personal appearance before the District Court of the United States in and for the Western District of Texas on the first day of the March term, 1919, to be begun and held at the city of Del Rio, Texas, at 9 o'clock a.m., and from time to time thereafter to which the case might be continued, and then and there to answer the charge of having, on or about the 7th day of December, A.D. 1918, within said district, in violation of section 5209 of the Revised Statutes of the United States, unlawfully, willfully, and fraudulently made false entries in the books of the Uvalde National Bank, of which said bank he, the said F. J. Rheiner, was then and there cashier, said bank being an association incorporated and operating under and by virtue of the national banking laws of the United States of America, and of having forged the names of certain depositors of said bank, and otherwise misapplied and embezzled the moneys, funds, and credits of said bank, and then and there abide the judgment of said court, and not depart without leave thereof.

'It is therefore considered by the court that the United States of America is entitled to a forfeiture of said recognizance, and it is ordered, adjudged, and decreed by the court that the United States of America have and recover of and from the said F. J. Rheiner, as principal, the sum of seven thousand five hundred ($7,500.00) dollars, and in like manner that the United States of America do have and recover of and from the said J. C. Davenport, F. N. Davenport, B. M. Davenport and T. J. Martin, as sureties, jointly and severally, the sum of seven thousand five hundred ($7,500.00) dollars, and that this judgment will be made final, unless good cause be shown at the next term of this court why the said defendant F. J. rheiner did not appear.

'It is further ordered that capias issue for the defaulting defendant, and that scire facias issue to said sureties, and that this cause be and the same is hereby continued. ' Volume A, p. 528, Minutes.

The exceptions to the sufficiency of the record are as follows: Failure to show (1) that a criminal prosecution was pending against the principal; (2) that an examination by an officer duly authorized to admit to bail had been held; (3) that the principal was bound to appear before said court 'to answer the accusation against him'; (4) that there was a finding of probable cause to believe that the defendant principal was guilty of any offense; and (5) that the bond, in requiring the principal to appear and answer a charge of 'having violated section 5209 of the Revised Statutes of the United States' (Comp. St. Sec. 9772), does not define any criminal offense.

The objections are more appropriate to testing the sufficiency of an indictment than that of proceedings for recovery of a penalty incurred under a formal contractual obligation to the United States. The issues are measured by the terms of the bond and the recitations of the judgment nisi. There seems no reason for a strict or highly technical construction of law in favor of defendants. This action does not involve the guilt or innocence, conviction or acquittal, of any one. It is not a criminal case. The bail bond is a contract between the sureties and the government. Upon the failure of the principal to appear the sureties become debtors. U.S. v. Sanges, 144 U.S. 310, 12 Sup.Ct. 609, 36 L.Ed. 445; U.S. v. Zarafonitis, 150 F. 97, 80 C.C.A. 51, 10 Ann.Cas. 290.

Where an offender has been bailed agreeably to the usual mode of process of the laws of the state where the offense is charged to have been committed, the laws of that state are to be looked to to determine the sufficiency of the procedure taken. Rev. St. U.S. Sec. 1014 (Comp. St. Sec. 1674). The Texas statute provides specific exclusive defensive causes which must exist to avoid final judgment on the scire facias. Article 500, vol. 2, Vernon's Crim. St. 1916. This statute was enacted for the purpose of confining a surety's defense to a scire facias on a forfeited bail bond or recognizance to one of the reasons enumerated and to prevent any inquiry as to the guilt or innocence of the principal defendant or of the validity or invalidity of the indictment. McCoy v. State, 37 Tex. 219. That the indictment is defective, or the principal defendant innocent, is not a defense, see other Texas cases: Jones v. State, 15 Tex.App. 82; Hester et al. v. State, 15 Tex.App. 418; Martin et al. v. State, 16 Tex.App. 265; Langan v. State, 27 Tex.App. 498, 11 S.W. 521; State v. Cocke, 37 Tex. 155; State v. Rhodius, 37 Tex. 165; State v. Ake et al., 41 Tex. 166 and also the following federal court cases: U.S. v. Reese, Fed. Cas. No. 16,138; U.S. v. Evans (C.C.) 2 Fed. 147; Hardy v. U.S., 71 F. 158, 18 C.C.A. 22; U.S. v. Graner (C.C.) 155 F. 679.

That the offense charged against the principal defendant is barred by the statute of limitations cannot be interposed by sureties on a recognizance. The undertaking of the sureties was to answer for their principal's appearance. Whether the offenses with which he is charged were barred by lapse of...