Erickson v. Marshfield

JOHNS, J. The City of Marshfield was incorporated under the provisions of Chapter 251 of the Special Laws of Oregon for 1905. Its recorder is vested “with the powers and jurisdiction of a justice of the peace,” the marshal “with the powers of a constable,” and each of them in the discharge of his respective duties “shall be subject to all the general laws of the State of Oregon.” Section 1660, L. O. L., reads thus: “The defendant, at any time after an order admitting him to bail, instead of giving bail, may deposit with the clerk of the court at which he is held to answer, or in which the action is pending or the judgment appealed from is given, the sum of money mentioned in the order: and upon delivering to the officer in whose [708] custody he is, the clerk’s certificate of such deposit, he must be discharged from custody.” Section 1663 provides : “When money has been deposited in lien of bail, if it remains on deposit at the time of a judgment for the payment of money, the clerk must, under the direction of the court, apply the money in satisfaction thereof, and after satisfying the same must refund the surplus, if any, to the defendant.” By Section 1666 it was enacted: “If money have been deposited in lieu of bail, and the defendant, at any time before the forfeiture thereof, surrender himself to the officer to whose custody he was committed' at the time of making the deposit, in the manner provided in Section 1664, the court or judge thereof must order a return of the deposit to the defendant, upon producing the certificate of the officer showing the surrender, and upon reasonable notice of the application to the district attorney.”' Section 1668 provides: “If, without sufficient excuse, the defendant neglect or fail to appear for arraignment, or for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, or to surrender .himself in execution of the judgment, the court must direct the fact to be entered in its journal; and the undertaking of bail or the money deposited in lieu thereof, as the case may be, is thereupon forfeited.” 1. In the instant case the bail money was delivered by the plaintiff to the city recorder of Marshfield or the court thereof, and the above receipt was issued by-the recorder, showing on its face that it was the plaintiff’s money which was deposited as bail for Foote, the defendant then under arrest. It also appears that the particular charge upon which Foote was arrested and for which the bail money was [709] deposited was dismissed against him and that thereafter he was arrested upon a different charge, upon which he was later tried, convicted and sentenced to pay a fine of $100 and serve ten days in jail. In the first case against him he was charged with unlawfully keeping and maintaining a place as a common nuisance, and in the second case he was charged with “wrongfully and unlawfully selling intoxicating liquor.” There is no testimony in the record that the one charge grows out of the other or that there is any continuity between them. As contended by the plaintiff, where cash bail is furnished there is a legal presumption, under the authorities, that it is the money of the defendant in the charge, and some courts hold that this presumption is conclusive: State v. Ross, 100 Tenn. 303 (46 S. W. 673); State v. Owens, 112 Iowa, 403 (84 N. W. 529); Whittaker v. State, 31 Okl. 65 (119 Pac. 1003); 6 C. J. 1023. It is also true, as plaintiff insists, that where cash bail is delivered to an officer who has no legal authority to receive it or accept it, the parties are in pari delicto, and that the money can thereafter be recovered because it is taken by an illegal act: Doane v. Dalrymple, 79 N. J. Law, 200 (74 Atl. 964); 30 Am. & Eng. Ency. 682. But that is not the case here. In this instance the money was not paid to an officer of the court, but was paid to the court itself by the plaintiff, to whom the court issued a receipt showing by whom and for what purpose the cash was advanced. We find the following in 6 C. J.: “Where, after giving bail, the prisoner is rearrested or ordered into custody on the same charge or for the same offense, his sureties are discharged, as the only consideration on the undertaking accruing to the sureties is their custody of the principal, and when this eon [710] sideration fails their liability ceases; nor are they liable where the prisoner escapes after snch arrest” (page 1027). ‘ ‘ The bail having been released by the rearrest, nothing short of a new obligation will again bind them, and, although the principal is subsequently released or escapes, or the order committing him to the custody of the sheriff is set aside, the liability of the sureties is not revived” (page 1028). ‘ ‘ The siireti.es have a right to stand upon the terms of their obligation, and therefore, if the recognizance is to answer an indictment for one offense, the bail are 'not liable for the failure of their principal to appear and answer to an indictment for an offense of an entirely different'character or class, where there is nothing tending to identify the two crimes as one or to show that the one charge had any relation to the other” (page 1029). As above pointed out, it does not appear that the second charge had its origin in the first offense or grew out of the same transaction. Under the provisions of the statute above quoted the defendant in the charge, with the approval of the court, may furnish cash bail, and it appears that when so furnished by a third party it shall be deemed and treated as the money of the defendant on the charge. That would be true as between the city of Marshfield and the plaintiff in regard to the first complaint against Foote, so long as that particular charge was pending. But after the first complaint was dismissed the $100 bail money had answered the purpose for which it was intended and under the facts shown here and as evidenced by the receipt, the money would then revert to the plaintiff and again become his property. The receipt shows, and the testimony is conclusive, that the $100 was the plaintiff’s money when it was given as bail. It was deposited for a specific purpose which [711] was fully accomplished when the first case against Foote was dismissed. ■ 2. Neither is this a case where an officer of the court without legal authority accepted cash bail and wrongfully released the defendant on the charge. Here the court took the money and then directed the officer of the court to release the defendant. The taking of the cash hail and the enlargement of Foote were judicial acts of the court and the parties were not in pari delicto. The judgment is affirmed. Affirmed. McBride, C. J., and Bean and Bennett, JJ., concur.