People v. Fidelity & Deposit Co.

One Slaymaker was arrested on November 23, 1925, and charged with a felony. Upon arraignment in the justice’s court his bail was fixed at $1,000, being later raised to $2,000. The defendant, Surety Company, furnished two bonds in the sum of $1,000 each, the first on November 23, 1925, and the second on November 27, 1925, at which time the defendant was released. He appeared at the preliminary hearing, and was held to answer. Thereafter, said defendant was arraigned in the superior court and pleaded “not guilty.’’ When the case was regularly called for trial the defendant did not appear. It is conceded that no bail was fixed, ordered or accepted subsequent to the preliminary examination and the commitment of said defendant. After due proceedings the bail was ordered forfeited, and the complaint in this action was filed setting up the above facts, and seeking to recover the amount specified in the two bonds. The defendant herein demurred to the complaint on the ground that it did not contain facts sufficient to constitute a cause of action, and also on the ground that two causes of action were attempted to be pleaded, but not separately stated. The demurrer being overruled and the defendant declining to answer,. judgment was entered, from which judgment this appeal is taken.

The principal contention of appellant is that the complaint did not state a cause of action, it being maintained that a justice of the peace, upon admitting a defendant to bail before a preliminary examination is held, has no authority to accept bail that shall apply after such a defendant has been held to answer. And that, since the defendant, Slaymaker, appeared at the preliminary hearing, the agreement of the defendant herein as set forth in the bonds in question was fully performed, the failure of said defendant to appear for trial in the superior court not

The authority for admitting a defendant to bail when the preliminary examination is not held immediately after the arrest, is contained in section 862 of the Penal Code. Section 1268 of this code defines “admission to bail,” while section 1269 defines the “taking of bail.” Section 1273 of this code, so far as it affects this case, provides as follows:

“Nature of bail. If the offense is bailable, the defendant may be admitted to bail before conviction:

“First. For his appearance before the magistrate, on the examination of the charge, before being held to answer.

“Second. To appear at the court to which the magistrate is required to return the depositions and statement, upon the defendant being held to answer after examination.”

Section 1277 is as follows:

“What magistrates may admit to bail. When the defendant has been held to answer upon an examination for a public offense, the admission to bail may be by the magistrate by whom he is so held, or by any magistrate who has power to issue the writ of habeas cor pits.”

Section 1278 provides how bail is furnished and gives the form which must be substantially followed.

“Now, we, Fidelity and Deposit Company of Maryland, a Corporation, . . . hereby undertake that the above named Nathaniel E. Slaymaker will appear in that or any other court in which his appearance may be lawfully required upon that charge and will, at all times, render himself amenable to its orders and process, and appear for judgment and surrender himself in execution thereof; or if he fails to perform either of these conditions, that we will pay .to the people of the State of California the sum of One Thousand Dollars. ”

This substantially follows the requirements of section 1278 of the Penal Code.

Examining section 1273, which with section 1277, is the section most relied upon by appellant, we are unable to follow his contention that the phrase “before being held to answer” and the phrase “upon the defendant being held to answer after examination,” give authority only for two separate bonds for two separate purposes. Giving the quoted phrases their greatest significance they would only provide that a defendant may be admitted to bail for either purpose. But the fact that the defendant might be admitted to bail at either stage of the proceeding, does not necessitate the holding that he must be admitted to bail separately at each of said stages. There is nothing in this section to indicate that a defendant may not be held to bail for both purposes covered by this portion of the section, and nothing to indicate that any bail given pursuant to the section and in the form provided by section 1278, shall cease to be of effect when the preliminary examination is held; nor that bail requiring the appearance of the defendant in the superior court after being held to answer, may not be given prior to his appearance before the magistrate on the examination of the charge. That it was the intention of the legislature to provide for one continuing bond that should cover both of the purposes named in the quoted portion of the section, is indicated by the terms of section 1278, which provides the form of the bond. The only reasonable interpretation of these sections is that, while a defendant is not required to obtain bail in the beginning or forever lose his right, when bail is furnished, it must be substantially

We find nothing in these statutes denying to the magistrate authority to accept bail prior to the preliminary examination, the bond being conditioned upon the defendant appearing and answering the charge in whatever court it may be prosecuted, and upon his holding himself amenable to its orders and processes at all times, including his appearance for judgment, if convicted. On the other hand, these statutes seem to particularly authorize such a bond.

Under such circumstances it becomes a question of contract as to what the parties have themselves agreed upon in the bonds in question. In San Luis Obispo v. Ryal, 175 Cal. 34 [ 165 Pac. 1 , 2], the court said:

“It is a familiar rule of law that sureties cannot be held beyond the terms of their contract of suretyship. They have a right to declare in their bond the terms and conditions upon which they shall be bound, and to stand on the precise terms of that contract.”

“As to those (authorities) announcing the general rule that sureties are entitled to stand upon the precise terms of their contract, they must he considered in the light of the language used by Mr. Justice Lorigan in Sather Banking Co. v. Arthur R. Briggs Co., 138 Cal. 730 [ 72 Pac. 352 ], that ‘The old rule of strictissimi juris applies only to the extent that no implication shall be indulged in to impose a burden not clearly inferable from the language of the contract, but does not apply so as to hold that the contract shall not be reasonably interpreted as other contracts are.’ In interpreting the terms of a contract of suretyship, the same rules are to be observed as in case of other contracts. (Civ. Code, sec. 2837.) ”

In the case at bar the appellant agreed in writing to undertake that the defendant for whom bail was given would appear in the justice’s court or, “any other court in which his appearance may be lawfully required upon the charge, and will at all times render himself amenable to its orders and process, and appear for judgment and surrender himself in execution thereof; or if he fails to perform either of these conditions, that we will pay to the People of the State of California the sum of One Thousand Dollars.”

It has heretofore been held that the form of bond provided for in section 1278 of the Penal Code applies to bonds to be given where the party is to appear before a magistrate before examination, as well as to those where he is held to answer after examination. (People v. American Surety Co., 55 Cal. App. 756 [ 204 Pac. 419 ]; City and County of San Francisco v. Randall, 54 Cal. 408 .) It has also been held that a bond conditioned in accordance with the provisions of section 1278 is sufficient to require the presence of the defendant in the superior court. In that case, one to recover upon such a bond when the defendant failed to appear in the superior court, the court said:

“The condition of the bond which is alleged to have been broken is that ‘The above-named Juan Santos will appear and answer the charge above mentioned in whatever court it may be prosecuted, and will, at all times, hold himself amenable'to the orders and process of the court. ’ The complaint shows that the case was regularly set for trial for

December 7, 1908, in the superior court of Shasta county, and on said day, ‘the said case was duly called to trial in said superior court, and the said Juan Santos having been theretofore duly advised of the time and place of said trial, then and there failed to appear for trial,’ etc. That the sureties undertook to produce Santos at the trial of the cause in the superior court when they promised that he would ‘appear and answer the charge in whatever court it may be prosecuted’ is too plain for argument.” (People v. Bellafont, 11 Cal. App. 492 [ 105 Pac. 426 ].)

In the case of State v. Sorensen, 48 Utah, 663 [ 160 Pac. 1181 ], decided by the Supreme Court of Utah, it was argued that a bail bond was given for the defendant’s appearance only in the justice’s court and hence that the failure of the defendant to appear in the District Court for arraignment was not a default or breach within the terms of the bond. The Utah statute, almost in the exact language of section 1273 of our Penal Code, was as follows:

“If the offense is bailable, the defendant may be admitted to bail: Before conviction—(1) For his appearance before the magistrate on the examination of the charge, before being held to answer; (2) to appear at the court to which the magistrate shall be required to return the complaint, upon the defendant being held to answer after examination; . . . "

The court there held that the bond in question, conditioned that the defendant “will appear and answer the charge above mentioned before said justice, or in whatever court it may be prosecuted,” covered the appearance of the defendant in the District Court. Not only did the bonds here in question contain similar language, but under section 1278 of the Penal Code they were required to be so worded.

There is no ambiguity in the bonds under consideration and their language is plain. Appellant agreed to pay a certain sum of money in the event the defendant, whose release was secured by said agreement, failed to comply with certain requirements definitely nominated in the bond. The requirements not having been complied with, the agreement of the appellant must be enforced.

The judgment is affirmed.

Cary, P. J., and Marks, J., concurred.