People v. American Surety Co.

CONREY, P. J.

Action on a bail bond. On the twenty-ninth day of April, 1919, a complaint was filed in the justice’s court of San Bernardino township, in the county of San Bernardino, charging one Schumacher with a felony, and a warrant of arrest was duly issued. On the first day of May, the defendant being in custody under said warrant, the justice made an order fixing his bail at the sum of two thousand dollars. Thereafter, on the third day of May, the defendant executed an undertaking of bail for Schumacher in the sum of two thousand dollars. The undertaking was in the form prescribed by section 1278 of the Penal Code, and accordingly recited that “an order having been made . . . that Harry W. Schumacher be held to answer upon the charge of a felony upon which he has been admitted to bail in the sum of two thousand dollars,” and the defendant undertook that the said Schumacher “will appear and

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answer the charge above mentioned in whatever court it may be prosecuted,” etc.

At the time of execution of the undertaking there had not been any preliminary examination of Schumacher. The time for holding the preliminary examination was set for the nineteenth day of June and the defendant in that case was duly notified thereof, but failed to appear. Thereafter his bond was declared forfeited on account of his failure to appear at the said preliminary examination. The appeal here presented is an appeal from the judgment rendered against the surety.

Section 1273 of the Penal Code, as amended in the year 1876 (Code Arndts. 1875-76, p. 116), provides for the conditions of admission 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. Third. After indictment, either before the bench-warrant is issued for his arrest, or upon any order of the court committing him, or enlarging the amount of bail, or upon his being surrendered by his bail to answer the indictment in the court in which it is found, or to which it may be transferred for trial.”

Section 1278 of the Penal Code appears in article II of chapter 1 of title X of part II of that code. Said article II is entitled, “Bail upon Being Held to Answer Before Indictment,” and has not been amended since its enactment in the year 1872. This section was a re-enactment of section 516 of the Criminal Practice Act (Stats. 1851, p. 269), without any changes in the clauses which we are required to consider in this ease. At the time of that first enactment, and until 1880, all felonies were prosecuted by indictment. (Pen. Code, sec. 888.)