United States v. Marrin

• Decision Date: 22 May 1909
• Docket Number: 44,46.,45,
• Citation: 170 F. 476
• Parties: UNITED STATES v. MARRIN et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

170 F. 476

UNITED STATES v. MARRIN et al.

Nos. 44, 45,, 46.

United States District Court, E.D. Pennsylvania.

May 22, 1909

J Whitaker Thompson, for the United States.

John Creth Marsh, for defendant.

Edmund F. Harding and William P. Maloney, for Walter Westlake administrator, etc.

Edward P. Bailey, for American Surety Co. of New York.

HOLLAND District Judge.

Frank C. Marrin presents his petition to this court praying that he be not held in default by reason of his nonappearance in person in court, and that his recognizance be not forfeited. On May 18, 1908, Marrin took an appeal from a sentence imposed upon him in this court to the appellate court of the Third circuit, and entered into a recognizance, with the United States Fidelity & Guaranty Company as surety, in the sum of $10,000, the condition of which is as follows:

'That if the said Frank C. Marrin, alias Frank C. Stone, alias Franklin Stone, alias Thomas Harper, whose application for a writ of error in the above matter has been allowed and is now pending, shall be and appear at the District Court of the United States for the Eastern district of Pennsylvania upon the determination of the proceedings on said writ of error, and the receipt and filing of a mandate or other process or certificate showing the disposition thereof by the said Court of Appeals, or within five days thereafter, to answer or obey and final order or judgment which shall be made in the premises, and not depart said court without leave thereof, then this recognizance to be void, otherwise to remain in full force and virtue.'

On the 27th of February, 1909, the judgment of this court was affirmed. After the mandate had been returned the United States district attorney gave notice that he would require petitioner's appearance in court on the 12th day of April, 1909. Marrin failed to appear, but instead presented a petition asking that his recognizance be not forfeited, for the reason that upon the 18th day of September, 1908, whilst in the state of New York, he was arrested upon a warrant based upon old indictments filed in the Court of Quarter Sessions in Kings county, N.Y., in 1895, upon the charges of forgery and grand larceny, upon which indictments he was tried, convicted, and on the 21st day of October, 1908, sentenced to a term of imprisonment of 15 years at Sing Sing. It appears that shortly after his arrest in New York, on the 2d day of October, 1908, he obtained a writ of habeas corpus which was sued out of the United States District Court for the Eastern District of New York, claiming a right to be discharged because of his obligation to appear in the District Court here upon the determination of the pending appeal. The application for discharge was heard by Judge Chatfield, and it appears from the opinion of the court in Ex parte Marrin (D.C.) 164 F. 633, that the--

'American Surety Company appeared in court, by attorney, made no answer to the writ, and disavowed any interest in the matter except in the obligation imposed upon it by the bail bond furnished in the city of Philadelphia. The application was brought to the attention of the United States through the district attorney of the United States for the Eastern district of New York, the United States was represented in court by an assistant United States attorney for this district, and the statement was entered upon the record that the United States had no motion to make, did not apply for the custody of the said Frank C. Marrin, and cared neither to join in nor oppose the present application.'

It is strenuously urged by the petitioner and his surety that the United States should not be permitted to forfeit his bond under the circumstances. There further appears in opposition to the forfeiture one Walter Westlake, administrator of Caroline Barry, deceased, who claims a fund of $10,000 placed in the possession of the American Surety Company as a counter indemnity by Marrin when the surety company became his bail. Caroline Barry, deceased, was an elderly woman residing in Brooklyn, who suffered the loss of all her property by reason of the crimes committed by Marrin for which he was indicted, convicted, and sentenced in New York. The United States filed a demurrer to these petitions, and insists upon its right to forfeit the recognizance, as Marrin failed to appear in accordance with its terms. The precise contention of the government is clearly stated by Judge Dillon in United States v. Van Fossen et al., 28 Fed.Cas. 357, No. 16,607:

'The case stands thus: The United States had the actual custody of the principal to answer an indictment which had already been preferred against him.

Upon the recognizance being taken, the principal was delivered into what Blackstone calls the 'friendly custody' of his sureties instead of being committed to prison. 4 Bl.Comm. 301. They thenceforth became invested with full authority over his person. They are his jailers. They may take him at any time or place-- in the state or beyond it. They are aptly said to have the principal always upon the string, and they may pull it when they please, to surrender him in their own discharge. Anonymous, 6 Mod. 231. If they do not exercise their power to prevent his going beyond the jurisdiction, and he does so with or without their consent, and commits an offense and is sentenced to prison for it, this cannot be accepted by the state in whose tribunals the recognizance was taken as a defense thereto.'

The petition in that case as subsequently amended suggested that the offense committed was prior to the date of the recognizance, but the court held that that fact did not change the legal obligation of the sureties. The view taken by Judge Dillon in the Van Fossen Case was fully sustained by Justice Swayne in the case of Taylor v. Taintor, 83 U.S. 366, 21 L.Ed. 287. It was there stated that in order to exonerate the bail the performance of the condition thereof must be rendered impossible by the act of God, the act of the obligee, or the act of the law, and it was said that where the principal dies before the day of performance the case is within the first category; where the court before which the principal is bound to appear is abolished without qualification, the case is within the second; if the party be arrested in the state where the obligation is given and sent out of the state by the Governor upon the requisition of the Governor of another state, it is within the third; and it is...