Emmanuel v. Sichofsky

WASTE, C. J.

Appeal from an order of the superior court made in proceedings supplemental to execution. The defendant Sichofsky was prosecuted and convicted in the superior court of Los Angeles County on a charge of grand larceny and felony embezzlement. He appealed from the judgment of conviction, which was subsequently affirmed. (58 Cal. App. 257 [208 Pac. 340].) While the appeal "was pending Sichofsky became a fugitive from justice. Some three years thereafter he was recognized and taken into custody by the sheriff, who delivered him to the warden of the state prison, there to serve his sentence. The sheriff, upon taking him into custody, found $35,890 in currency, other money, and some valuable diamonds upon Sichofsky’s person, and upon delivering him to the prison turned the money and property over to the warden, to be kept by the latter pursuant to section 1587 of the Penal Code. Thereafter the plaintiff, Emmanuel, brought an action in the superior court of Sacramento County against Sichofsky, and obtained judgment against him for $14,300, with costs, for moneys loaned and advanced by Emmanuel to Sichofsky, and for merchandise entrusted by plaintiff to defendant to be sold and accounted for by the latter, and which Sichofsky had in fact sold and converted the proceeds thereof to his own use. These financial transactions between Emmanuel and Sichofsky appeared to have occurred subsequent to the latter’s trial and conviction, and after he had become a fugitive from justice. Execution was issued upon this judg

[715]

ment and levy thereof made upon the warden of the prison where Sichofsky was confined. Upon affidavit of counsel for plaintiff the warden was cited to appear before the superior court (Code Civ. Proc., sec. 717 et seq.) to answer concerning the property of the prisoner within his possession. The warden admitted that he held the money, but contended that it was

in custodia legis

and not subject to seizure under execution. The lower court, after hearing, made its order requiring the warden to pay over to the sheriff súfficient of the money in his custody to satisfy the execution. Prom this order the warden has appealed.

Prom the authorities upon the subject it may be gathered as a general rule that if money on the person of a prisoner when outside the prison walls is not subject to seizure, it is not subject to attachment or garnishment when it passes involuntarily from his possession to the custody of the officer appointed by law to take it into possession, when such person enters as a prisoner within the walls. Public policy requires the adoption and maintenance of this rule. Were it otherwise it would lead to a grave abuse of criminal process. It would tempt creditors whose debtors keep their funds upon their persons, and thus beyond the reach of civil process, to make unfounded criminal charges against their debtors, and bring about their arrest and the transfer of their funds to the custody of the arresting officers, in order to make them reachable by the process of garnishment. It needs no citation of the eases to show that the general rule, as thus broadly stated, is supported by the preponderance of authority. Appellant’s position is that the rule finds expression in the section of the Penal Code (sec. 1587) wherein it is provided that the warden of the prison shall keep a correct account of all money and valuables upon the prisoner when delivered at the prison, and that each convict, when he leaves the prison, shall be supplied with the money taken from him, and which he has not disposed of. Assuming that to be so, it does not follow that the rule mast be applied in every case. In