Whiteaker v. State

• Decision Date: 14 November 1911
• Citation: 119 P. 1003,31 Okla. 65,1911 OK 452
• Parties: WHITEAKER v. STATE.
• Court: Oklahoma Supreme Court

119 P. 1003

31 Okla. 65, 1911 OK 452

WHITEAKER v. STATE.

Supreme Court of Oklahoma

November 14, 1911

Syllabus by the Court.

Wilson's Stats. of Okla. 5774, is not repugnant to section 8 of the Bill of Rights.

Where pursuant to Wilson's Stats. of Okla. § 5774, permitting a deposit in lieu of bail, one other than defendant deposits the money, held, when construed with Wilson's Stats. Okla. §§ 5403, 5413, which make no provision that the money be returned to one other than defendant, that the same fairly require that said money so deposited should, for the purpose of the deposit, be conclusively presumed the money of the defendant and treated accordingly.

Where pursuant to Wilson's Stats. of Okla. § 5774, a deposit of money is made with the clerk of the district court in lieu of bail by one other than defendant, and where, upon failure of defendant to appear at the time and place required by his undertaking, default is had and a forfeiture duly entered upon the journal of the court, on petition of the person making such deposit for an order requiring the clerk to turn the money over to him, held, that the court did not err in refusing to grant the prayer of the petition.

Where the court's order for the release of defendant was not signed by the judge when the same was delivered to the sheriff, in conformity to Wilson's Stats. of Okla. § 5773, the failure so to do does not render unlawful the discharge thereon of the prisoner so as to save a forfeiture of the money deposited in lieu of bail pursuant to Wilson's Stats. of Okla. § 5774.

Where money is deposited in lieu of bail and the defendant fails to appear, it is only necessary, in order to declare a forfeiture, that the court should direct the fact of the deposit, and of the defendant's neglect to appear, to be entered of record. The forfeiture then follows as a matter of course.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by J. D. Whiteaker against the State of Oklahoma. Judgment for defendant, and plaintiff brings error. Affirmed.

M Fulton, for plaintiff in error.

Sam Hooker, for defendant in error.

TURNER C.J.

On December 16, 1908, the county attorney of Oklahoma county filed in the district court of that county an information charging Grover C. Whiteaker with assault with intent to kill. On the next day but one he was arraigned, and pleaded not guilty, and his bond fixed at $7,500 the same to be approved by the clerk of said court. On December 23, 1908 there was filed in the office of said clerk an unsigned unofficial order of release indorsed thereon: "This is to verify that I have received this order of release on December 23, 1908, and executed on December 23, by releasing the said Grover C. Whiteaker from custody. [Signed] H. D Garrison, Sheriff, by M. C. Binion." On January 26, 1909, there was made and entered in said cause the following order: "This cause coming regularly before the court for trial, the defendant comes not, whereupon he is three times loudly called to come into court and save his recognizance, but comes not, but is in default, whereupon it is ordered that the bond of the defendant be, and the same is, hereby forfeited. And it is ordered that the clerk of this court pay to the county treasurer of Oklahoma county the moneys in his hands as cash bond of the defendant, to which ruling Dr. Whiteaker excepts, and it is further ordered that the clerk issue an alias warrant for the arrest of the said Grover C. Whiteaker." On February 16, 1909, Dr. J. D. Whiteaker, plaintiff in error, petitioned the court for an order directing the clerk to turn said $7,500 over to him, on the hearing of which it developed that the accused and petitioner were brothers; that for the purpose of furnishing him bail petitioner left his home in Kentucky and came to Oklahoma City, and deposited with the clerk of said court the money in controversy, the property of petitioner, and which is still in his hands; that thereupon the accused was released from jail as shown by said order entered upon the journal of the court, but was not placed in the custody of petitioner, and that petitioner has since been unable to surrender him. Upon this showing the court refused to grant the prayer of said petition and overruled the same, and rendered and entered judgment accordingly. To reverse said judgment this proceeding in error was commenced.

It is urged that Wilson's Stats. of Okla. § 5774, which reads, "A deposit of the sum of money mentioned in the order admitting to bail is equivalent to bail and upon such deposit the defendant must be discharged from custody," was not extended to and put in force throughout the state by section 2 of the Schedule, because repugnant to section 8 of the Bill of Rights, which reads, "All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great;" and for that reason the sheriff acted without authority of law in releasing the prisoner on said deposit, which was, in effect, not an enlargement, but an escape, and hence petitioner is entitled to recover back his money. Assuming said repugnancy to exist, and the general doctrine to be as urged, in substance, that an officer authorized to receive bail for the appearance of a person charged with crime cannot receive money in lieu of bail, no such power being conferred by statute, and, if so paid in, neither the state nor county has claim to it (see Columbus v. Dunnick, 41 Ohio St. 602; State v. Lazarre, 12 La. Ann. 166; United States v. Faw, 1 Cranch C. C. 486, F. Cas. No. 15,078), petitioner is far from a recovery. This for the reason that by so doing and securing the release of the prisoner the clerk in receiving the money and the sheriff in setting him at liberty were guilty at least, it seems, of "committing an unlawful act tending to hinder justice," denounced by Wilson's Stats. of Okla. § 2096, as a felony, and petitioner, if not an accessory under section 1948, was at least in pari delicto, and for that reason not entitled to invoke the power of this court in aid of his recovery.

In Smart v. Cason, 50 Ill. 195, David C. Smart was confined in the county jail under indictment for larceny. Plaintiff in error placed in the hands of William L. Simons a sum of money, and procured the enlargement of the prisoner. Defendant in error was the sheriff of the county, and Simons his deputy. The terms upon which the prisoner was released were reduced to writing signed by plaintiff in error prior to such release, the conditions of which were similar to the condition of a recognizance of bail for the appearance of said Smart to answer to the charge at the next term of court which, when done, the money was to be returned to plaintiff in error, but, failing therein, the same was agreed to be absolutely forfeited to the people and treated as if collected under a judgment upon a forfeited recognizance. On this evidence the trial court found the issues for defendant and rendered judgment accordingly, to reverse which petitioner prosecuted a writ of error. At that time no statute existed authorizing the sheriff to receive money to the amount of bail and enlarge the prisoner. Section 175 of the Criminal Code, however, declared it to be the duty of the circuit court in which an indictment was found to fix bail for bailable offenses and authorized, and required the officers, after arresting the accused, to admit him to bail with good and sufficient security, describing the condition of the recognizance. By which it appeared that said statute did not empower the sheriff or jailer to receive a deposit of money or property for his indemnity in lieu of bail. On this state of the case the court said: "Then, it follows that the act is unauthorized and illegal, and, if so, the sheriff has wrongfully become possessed of this money, and plaintiff in error is entitled to recover it back unless he is in pari delicto. That it is a flagrant violation of the duty of a sheriff or jailer to discharge a prisoner committed to his custody under proper authority, unless it be by legal requirement, there can be no question. And, should a sheriff receive a bribe for the purpose, he would no doubt render himself liable to indictment and punishment under the Criminal Code, or where the sheriff willfully, or from ignorance of his duty, unlawfully discharges a prisoner indicted for crime. Section 101 of the Criminal Code declares that if any sheriff, coroner, jailer, keeper of a prison, constable, or other officer or person whomsoever, having any prisoner in his legal custody, before conviction, shall voluntarily permit or suffer such prisoner to escape or go at large, every such officer or person so offending shall, on conviction, be fined in any sum not exceeding $1,000, and imprisoned in the county jail not exceeding six months. It is apparent that the receipt of this money for the purposes shown by the evidence was illegal, and that it did not warrant the discharge of the prisoner; and, if that was not authorized, it was in violation of section 101 of the Criminal Code, and, if so, then plaintiff in error was particeps criminis. There is no rule of law more firmly established than that a party who gives or pays money to induce another to commit a crime or misdemeanor, being a party to it, cannot recover it back. Although this money was not paid as a bribe, it was left as an indemnity to the sheriff to procure the release of the prisoner, and plaintiff in error thereby contributed to the breach of the law, and, from the evidence in the case, to a violation of the Criminal Code. It then follows that as plaintiff in error contributed to the wrongful discharge of the prisoner, and has thus assisted in obstructing...