People v. Bennett

A motion has been made fa,r a re-argument, on the ground that the court misapprehended the facts upon the decision of the appeal.

In the opinion handed down it is assumed that the entry in the minutes of the court of general sessions, there referred to and quoted in full, was made on March 21, 1892, whereas the appellant insists it was not made until April 1, 1892, and after the surety had surrendered his principal, and lie was then in the custody of the People; and it is argued that if when the principal was surrendered the undertaking of bail had not been in fact forfeited by the entry of the default in the minutes, such entry could not be subsequently made so as to impose a liability upon the surety, and, therefore, there was no jurisdiction to enter judgment upon the bail piece. We did not deem it necessary upon the decision of the appeal to determine the correctness of this proposition, because, as we read the record, it sufficiently appeared that there was an entry made in the minutes of the court on March 21, reciting the non-appearance of the principal, and we thought then and think now that the papers filed in opposition to-the motion to vacate the judgment do not admit of a contrary conclusion. In the affidavit of assistant district attorney Washburn,,

Assistant district attorney Lynn, in his affidavit, also refers to an order which had been made before April 1st, forfeiting the recognizance.

There can be no question, therefore, that upon the respondents’ papers it clearly appears that the first order of forfeiture printed in the record as the minutes of the court, was made on March 21st. But the appellant's counsel contends that it was admitted in the supplemental brief of the district attorney, upon the argument of the appeal herein, that this order was not entered until April 1st. That is undoubtedly true, but the district attorney there insists that it was in fact made by the court on March 21st, and that the failure of the cleric to record or enter it, as it is termed, until April 1st, did not render it inoperative, nor enlarge the privileges of the bail. In his brief in opposition to this motion, the respondents’ counsel correctly insists that the extent of his concession was that the record did not disclose a formal entry at length of the order of March 21st. This must have been a direction of the court in writing, otherwise it would not have been an order. When so made on March 21st, it became a part of the proceedings in the cause, and was a sufficient compliance with the requirement of § 593, Criminal Code, which provides that if the defendant does not appear “the court must direct the fact to be entered upon its minutes; and the undertaking of his bail is thereupon forfeited.” The failure of an officer of the court to discharge a clerical duty did not render the order of the court nugatory, and the court on March 21st did all that the statute requires in order to make the forfeiture of the bail complete.

The motion must be denied, with costs.

All concur.