People v. National Automobile & Casualty Insurance

SHINN, P. J. National Automobile and Casualty Company appeals from an order refusing to vacate an order forfeiting bail when its principal, Langlois, failed to appear in execution of judgment. Langlois’ conviction of felony had been affirmed and December 16, 1963, had been fixed as the time for sentence. When Langlois failed to appear, his bail was ordered forfeited and a bench warrant was issued. The warrant was not executed but on January 3 Langlois appeared with his surety, offered an excuse for his former failure to appear, the order forfeiting bail was vacated, bail was exonerated, Langlois was committed and the matter was continued to January 8th. Upon this date Langlois appeared with his attorney. A supplemental probation report was ordered and a minute order was entered “Bail set $5,000 plus penalty assessment. Bail reinstated upon reassumption” and, as stated in the reporter’s transcript “if the bonding company will assume liability on the bond, bail will be set at $5,000.00.” The matter was continued to January 29, an agreement executed by the surety was filed by the attorney for the defendant and he was released. January 29 the defendant failed to appear and an order was entered forfeiting bail. On June 10, the court entered its order denying appellant’s motion to set aside the forfeiture. The appeal is from this order.

Appellant advances two contentions: the court was without jurisdiction to release the defendant on bail after he had been committed in execution of judgment and the purported resumption of liability was void; also that the attorney for the defendant had no authority to file the agreement of the surety.

For the first proposition appellant contends that the court has no power to admit to bail in any situation for which bail is not specifically authorized by the Penal Code; there is no authority to grant bail after a defendant has been committed upon his appearance for execution of judgment. The court’s authority was exceeded and consequently the agreement of the surety was void.

The People contend that authority to grant bail exists in all [493]situations except those for which the right to bail is expressly-denied by law. We agree with this contention of the People.

Appellant contends, correctly, that when a defendant fails to appear for execution of judgment and his bail is forfeited for that reason the court must order that he be committed, and there is no express provision for the grant of bail to one thus committed. Section 13131 of the Penal Code provides for such commitment and makes no provision for bail. Appellant says that where bail is forfeited for a reason other than the failure to appear for execution of judgment bail may be granted. Section 1314 so provides.2 Appellant then argues that the absence of a provision for bail where bail has been forfeited for failure to appear for sentence implies that bail may not be granted. As previously stated, we are of the opinion that the law is contrary to this contention.