Vaughn v. District Court In and For Second Judicial Dist., 27430
| Decision Date | 17 January 1977 |
| Docket Number | No. 27430,27430 |
| Citation | 192 Colo. 348,559 P.2d 222 |
| Parties | William E. VAUGHN, Petitioner, v. DISTRICT COURT IN AND FOR the SECOND JUDICIAL DISTRICT and the HonorableGilbert Alexander, judge thereof, Respondents. |
| Court | Colorado Supreme Court |
Alfred C. Harrell, Denver, for petitioner.
R. Dale Tooley, Dist. Atty., Stephen S. Marsters, Deputy Dist. Atty., Denver, for respondents.
The petitioner was charged with possession of narcotics for sale and conspiracy. He was released on $15,000 bond. After the trial court granted the petitioner a continuance, the surety requested exoneration of his bond. As the sole basis for the request to withdraw, the surety stated:
'Well, it's almost getting ready to lead into a divorce action in my household, and I don't feel this is justified in causing the problems in my home.'
The court granted the surety's request, over the petitioner's objection that (a) notice was not given to either defense counsel or the district attorney by the surety, and (b) the evidence was insufficient to allow withdrawal. Petitioner then sought relief in the nature of a writ of prohibition in this court, pursuant to Colo.Const. Art. VI, Sec. 3, and C.A.R. 21. We issue an order to show cause and now discharge the rule.
The general function of a writ of prohibition is to enjoin an excessive or improper assumption of Jurisdiction. It is designed to restrain rather than remedy an abuse of jurisdiction. See, e.g., Stiger v. District Court, 188 Colo. 407, 535 P.2d 508 (1975); City of Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974). It is a discretionary writ. See Leonhart v. District Court, 138 Colo. 1, 329 P.2d 781 (1958). It does not correct mere error or provide a substitute for appeal. See, e.g., First National Bank v. District Court, 164 Colo. 9, 432 P.2d 1 (1967); Prinster v. District Court, 137 Colo. 393, 325 P.2d 938 (1958). Compare Weaver Construction Co. v. District Court, Colo., 545 P.2d 1042 (1976).
The petitioner's contentions are governed by section 16--4--108, C.R.S. 1973, which provides, in pertinent part:
'Exoneration from bond liability. (1) any person executing a bail bond as principal or as surety shall be exonerated as follows:
Accord, Crim.P. 46(a)(7)(I)(C).
In this case, the district court did not exceed its authority in overruling petitioner's objection that he was entitled to prior notice under section 16--4--107, C.R.S.1973. That statute provides for notice where the amount or conditions of bail are to be altered. In the case of exoneration of a surety, the common law considers the principal to be within the custody of the surety. There is no prior notice requirement for exoneration of the surety when the principal is surrendered in open court. See, e.g., Taylor v. Taintor, 83 U.S. 366, 21 L.Ed. 287 (1872); Scott v. People, 64 Colo. 396, 172 P. 9 (1918); See generally D. Freed and P. Wald, Bail in the United States (1964); Note, Bail: An Ancient Practice Re-examined, 70 Yale L.J. 966 (1961). Section 16--4--108, C.R.S. 1973, codifies this authority. Accord, Fed.R.Crim.P. 46(g).
Assuming, arguendo, that petitioner was entitled under the statute to a hearing to determine whether the court should require the surety to refund part or all of the bond premium in order to...
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