Pernetti v. People

O’Brien, J.: This is an appeal from an order of the Special Term denying a motion to vacate and set aside a judgment upon a forfeited recognizance. The judgment was entered against Maria Gr. Pernetti, the present appellant, and it appears that an execution was issued upon such judgment, and the order appealed from also denied a motion to vacate such execution. The substantial facts are the following : One Benedetto Madonia was killed on April 14, 1903. Messina Genova was, with others, arrested for this crime and he, with them, was admitted to bail. The appellant, Pernetti, gave bail for him in the sum of $1,500. Subsequently the charge against Genova was dismissed by the grand jury, but on the same day an indictment for [392] perjury was found against him, it being charged that he had sworn falsely before the coroner upon the inquest into the death of Madonia. Genova did not appear to plead to the indictment, and after various adjournments the bail bond was forfeited. Judgment was entered against this appellant and an execution against her property was issued. The appellant contends that her motion to vacate the judgment and execution should have been granted because her liability to respond under the bail piece was limited only to responsibility for Genova’s appearing to answer an indictment for homicide; and the question is one of construction of the bail bond. The form and substance of the undertaking are fixed by section 568 of the Code of Criminal Procedure. Here the bond was in the form prescribed by that section and, after reciting that the prisoner, Genova, was held upon the charge of homicide, it provided in terms as follows: “That the above-named Messina Genova shall appear and answer the charge above mentioned in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court.” In legal effect, the surety signing such a bond is substituted for the jailor, and it is his duty, when ordered and directed by the court, to produce the prisoner; and it would be giving a narrow construction to the obligation imposed by the bond to hold that the recital of the charge upon which the prisoner is held is conclusive upon the question of the responsibility of the surety for the production of the prisoner. If the prisoner, instead of obtaining a surety, remained in jail, then, though originally arrested upon one charge, he would be where, under the order of the court, he could be produced to answer for any other charge. By reason, however, of the undertaking given, the prisoner is removed from the custody of the keeper of the jail under an agreement that the surety will forfeit the penalty of the bond if unable to produce the prisoner at all times when required by “ the orders and process of the court.” It is common knowledge that the precise nature of a criminal charge is not at all times definitely determined or fixed, nor can it be until those intrusted with the administration of criminal law can examine into the character of the evidence. It is frequently necessary to [393] make arrests promptly, and if magistrates are compelled at the outset to determine with exactitude the precise criminal charge which the evidence will sustain, not only would there be a great burden placed upon the magistrates, but frequently, and in a case of which, the present is a good illustration, there might be a miscarriage of justice. The statement in the bond of what is regarded as the offense is at most but a recital, and there is no doubt that if the prisoner had remained in jail he would he ready to answer to the charge of perjury which grew out of the proceedings before the coroner in which the person or persons responsible for the homicide were involved. So far as the remedy of the People against the prisoner is concerned, if he had remained in jail it would be immaterial on what charge he was held, because he would be amenable to the orders and process of the court upon any other charge. As the result of the giving of the bond, the surety has obtained the release of the prisoner and has become the substitute for the jailor; and I can see no escape from the obligation upon her part to produce the prisoner just as the jailor would have produced him when required by the orders and process of the court. Upon authority this view is sustained, as will be seen from the cases of Champlain v. People (2 N. Y. 82); People v. Gillman (125 id. 372), and People v. Russell (35 Misc. Rep. 765; affd. by this court, 67 App. Div. 620). In the Ghamplain case the question arose upon a demurrer to a complaint, the objection thereto being that there was no averment that an indictment had been found at the term at which the defendant failed to appear. In overruling the demurrer the Court of Appeals said: “ A man’s bail are the jailers of his own choosing, and they are bound to have him as much in the power of the court as if he was within the prison walls.” This statement is quoted with approval in the Gillman Case (supra), and it was therein further said: “ The statement of the offense charged, therefore, is not of the essence of the undertaking of bail, nor does it bear materially upon the obligation. It is rather a matter for recital, and it bears upon the completeness of the instrument in form and historical detail. The undertaking binds the surety for the appearance of the prisoner, not merely to answer [394] to that specific charge upon which he was admitted to bail, but also that he ‘ shall at all times render himself amenable to the order and process of the court, and, if convicted, shall appear for judgment and render himself in execution thereof.’ While he is in custody, whether that of the sheriff or surety, he is held to appear as well upon any other charge of crime for which he may be subsequently indicted. The undertaking is, in effect, that the defendant in the proceedings shall be kept in custody and subject to the order of the court until discharged. When that occurs, and not till then, is the surety released.” This is not a mere dictum. It is a statement of the law and is part of the reasoning of the court which induced it to hold that the defendant in that case was liable upon a bail bond. In the Russell Case (supra) this court affirmed without opinion the order of the Special Term, in which the views expressed in the Champlain and Gillman cases were reasserted by the learned judge who wrote the opinion at Special Term, and I do not see why that decision is not controlling upon this court. In People v. Pernetti (95 App. Div. 510), which was an appeal by Pernetti from a judgment in favor of the plaintiff forfeiting a recognizance, with notice of an intention to bring up for review upon such appeal the order directing the forfeiture of the undertaking, it was held that no appeal will lie from such a judgment, the remedy being by motion to vacate the order forfeiting the recognizance. In the course of the opinion the learned judge did say that, “ so far as appears by this record, the order forfeiting the recognizance was not justified, as it does not appear that the principal was ever called upon to answer the charge of homicide, and the liability of the surety was conditioned upon his failure to appear and answer that charge. But, for the reason stated, this question cannot be considered on this appeal.” It will thus be noticed that the question was not involved in that case and was not decided, and this expression was clearly obiter. The weight and importance to be attached to expressions in opinions has recently been discussed in Crane v. Bennett (177 N. Y. 106), and as therein said : “ A judicial opinion, like evidence, is only binding so far as it is relevant, and when it wanders from the point at issue it no longer has force as an official utterance.” The question upon which, as stated, the learned judge writing [395] the opinion expressed his views in People v. Pernetti (supra) was not involved, nor was it decided, and, therefore, that case should not be regarded as controlling or as intended to reverse the conclusions reached by this court in the Russell Case (supra) and also by the Court of Appeals in the Champlain and Gillman Cases (supra). I think, therefore, that the order of the Special Term was right and that it should be affirmed, with costs. Yan Brunt, P. J., and Patterson, J., concurred; McLaughlin and Laughlin, JJ., dissented.