People v. Budd

Morrison, C. J.: It appears from the record in this case, that on the 22nd day of October, 1875, an order was made by the Hon. S. A. Booker, then judge of the Fifth Judicial District, admitting one J. [350]H. McDonald to bail, in the sum of $500, and that an undertaking was given in pursuance of said order, and the terms of the statute for that amount. The undertaking was signed by the defendants, and the offense charged was a misdemeanor.

Afterwards an indictment was found and presented against McDonald, and on the 27th day of March, 1876, the case was regularly called for trial in the County Court of Stanislaus County, and the defendant being absent, he was then and there called by the sheriff, and failed to appear either in proper person or by attorney, whereupon the County Court made an order declaring the bond entered into by the defendants forfeited. The action is brought upon this bond or undertaking, and the order of forfeiture is relied upon by plaintiff as giving a right of action.

The condition of the undertaking sued on is, “ that the above-named J. H. McDonald 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, and if convicted, will appear for judgment, and render himself in execution thereof; or if he fails to perform either of these conditions, that he will pay,” etc.

After the indictment was found, the defendant appeared in Court and interposed a plea of not guilty, but did not appear at the time the case was called for trial. The case was not tried, and therefore there was no conviction; but the Court, as has been already remarked, declared the bond forfeited, because of the failure of the defendant to be present at the time appointed for the trial. The simple question is, Does the record show a breach of any conditions of the bond which justified the order of the Court declaring a forfeiture ?

Section 977 of the Penal Code provides that, “ if the indictment is for felony, the defendant must be personally present; but if for a misdemeanor, he may appear upon the arraignment by counsel.”

Section 978. “ When his personal appearance is necessary, if he is in custody, the Court may direct, and the officer in whose custody he is must bring, him before it to be arraigned.”

Section 979. “If the defendant has been discharged on bail, or has deposited money instead thereof, and do not appear to