National Automobile Insurance v. Superior Court

CRAIG, J.

On June 4, 1928, one Domenick Romeo was arrested and taken before a judge of the municipal court of the city of Los Angeles upon a charge of having violated the Wright Act (Stats. 1921, p. 79), a felony, at which time he gave bail in the sum of $2,500, as then fixed, and was released. On June 6th, at the close of his preliminary examination, the defendant moved for a reduction of bail to $1,500, whereupon an order was made and entered directing that he furnish bail in the amount last mentioned or be committed to the custody of the sheriff until such bail be given. He was not taken into custody, nor did he furnish new bail, but left the courtroom and was at all times at large thereafter. Upon the date set for arraignment in the superior court, Romeo failed to appear, whereupon the latter court declared his bail forfeited, and ordered the issuance of a bench warrant. The original bail in the sum of $2,500 having been furnished by the petitioner herein, it seeks by

certiorari

to review the proceedings below, and prays exoneration therefrom.

The numerous authorities relied upon by the petitioner are uniform in adhering to the well-established rule that if a defendant be convicted, or be surrendered by his sureties and actually taken into custody, his bail given for appearance at the time of trial will be exonerated, and the bond rendered

[414]

fimctus officio.

But there is no contention in the instant case that the defendant was at any time surrendered, nor that he was present at the time set for arraignment, or that he was tried.

We are cited to no authority directly in point, nor are we aware of any. In

People

v.

Newman,

100 App. Div. 436 [91 N. Y. Supp. 811], it appeared that Néwman and another entered into a recognizance in the sum of $1,000, wherein it was provided that the principal would “personally appear during the said [preliminary] examination on each and every day to which the said examination may be adjourned, until the same is fully completed.” The defendant in the criminal case was present at the commencement of the preliminary examination, and after hearing testimony on the part of the people the magistrate continued the proceedings, and directed that the defendant furnish a new undertaking in the sum of $1,500, which he failed to do, but departed and was not present when the examination was resumed. In affirming a judgment against the surety it was said in part: