Tinkle v. State

Sam Robinson, Associate Justice. The issue here is whether the Governor has authority to remit a forfeited bail bond. Thomas Gordon Tinkle, Jr. was charged in the Criminal Division of the Chickasawba District of the Mississippi County Circuit Court with the crime of burglary and grand larceny. When the case was called for trial, Tinkle failed to appear, and the court ordered that the bail bond be forfeited. Later, the Governor issued a proclamation purporting to remit such bond forfeiture. Appellants then filed a motion in the circuit court to set aside the judgment in the sum of $5,000 rendered on the bond forfeiture, alleging that the forfeiture had been remitted by the Governor’s proclamation, which was made a part of the motion. The trial court overruled the motion to set aside the judgment, and the principal, Tinkle, and the bonding company, Carolina Casualty Company, have appealed. The State contends, first, that the Governor does not have the authority to remit a forfeited bail bond; second, that if the Governor does have such authority, procedure required by statute was not followed; and therefore the proclamation is invalid. Article 6, § 18 of the Constitution of the State of Arkansas provides: “In all criminal and penal cases, except in those of treason and impeachment, the Governor shall have power to grant reprieves, commutations of sentence and pardons after conviction; and to remit fines and forfeitures under such rules and regulations as shall he prescribed by law. ...” Attorneys for the State argue that the procedure to force collection on the forfeited bail bond is a civil action and that, therefore, the whole proceeding arises out of a civil penalty or forfeiture, and that the Governor therefore can give no relief. Hutton v. McCleskey, 132 Ark. 391, 200 S. W. 1032, is cited as authority for that conclusion. But in that case the only issue was whether the Governor under the Constitution could remit a penalty imposed on all who failed to assess their property for taxes in the manner prescribed by statute. It was certainly not a “criminal or penal case.” The Hutton decision at most classifies forfeitures into two categories, criminal and civil. The forfeiture in the case at bar was in a criminal case. The bond was given to insure the defendant Tinkle’s appearance under a criminal indictment. A majority of the states have a constitutional provision in which the power “to remit fines and forfeitures” is granted either to the Governor alone or in conjunction with other executives comprising a board. In none of these states have the courts ever held that the forfeiture mentioned in the constitutional provision does not apply to a forfeited bail bond. In fact, all of the courts having had occasion to pass on the question have held that the Governor alone or in conjunction with the board, as the ease may be, does have authority to remit a forfeited bail bond. The case of State v. Dyches, 28 Tex. 535, is directly in point. There the Texas court held outright that under a constitutional provision similar to ours the Governor had the power to remit a forfeited bail bond. See also: Williams v. Shelbourne, 102 Ky. 579, 44 S. W. 110; Com. v. French, 130 Ky. 744, 114 S. W. 255; Com. v. Hargis, 137 Ky. 1, 120 S. W. 294. In the case of State v. Stone, 224 Ala. 234, 139 So. 328, the defendant failed to appear at trial on a charge of violation of the prohibition law. A judgment was taken against the sureties on the bail bond and made final. The sureties in seeking relief secured the passage of an act in the legislature appropriating the amount of the bond to be paid to them, the sureties. In holding that the act was unconstitutional in that the constitution granted to the Governor the power to remit forfeitures, the court said: “Under the Constitution of 1819, section 11, article 4, the Governor is given the power in all criminal and penal cases, except in those of treason and impeachment, to grant reprieves and pardons and remit fines and forfeitures, under such rules and regulations as shall be prescribed by law [identical with ours]. . . . No one, we assume, would pretend to hold that the next hour after the judgment was made final against the sureties on the bond of Moberg the Governor could not have remitted the forfeiture then made final against the sureties. This has been done from the earliest history of the state without question of the authority of the Governor. This power to remit such judgment, at all times called ‘final forfeitures,’ has been confided to the Governor or the executive branch of the government. ... It is to us clear that the Governor alone has the power to remit fines and forfeitures imposed and growing out of criminal prosecutions. This has been the prevailing idea through the years, from the birth of the state to the present time.” [Emphasis ours] In Harbin v. State, 78 Iowa 268, 43 N. W. 210, the defendant Harbin failed to appear and an action on the bail bond was instituted and judgment rendered thereon. Almost a year after judgment, the Governor issued a proclamation remitting $600 of the $795 forfeiture, providing the balance, plus costs, was paid. The surety paid the balance and costs. The judgment was not satisfied of record and execution was issued. A proceeding was instituted to stay the collection of the judgment. The court said: “Had the governor authority, after the bond was prosecuted to judgment, to remit any part thereof? The power of the governor to make such remission after the entry of the breach of the conditions of the bond by the justice, and before judgment, is not questioned in this case; the point in argument being that, after judgment, there is no forfeiture within the meaning of the law, but a judgment over which the governor has no control or right of remission. The question involves a construction of section 16, art. 4, of the constitution, the essential part of which is that the governor ‘ shall have the power to remit fines and forfeiture under such regulations as may be prescribed by law* [same as ours]. . . . The case deals with the question of the claim being so changed that it is no longer a forfeiture within the meaning of the law as to the authority of the governor to remit.” After discussing the argument of whether the governor had authority to remit after judgment, and deciding in the affirmative, the court further said: ‘ ‘ The principle is of so much importance as to have a foundation in constitutional enactment. It hardly needs argument or citation of facts to show that reasons might exist for this beneficent act on the part of the governor, as well after judgment on a forfeiture as before. The law contemplates fact and circumstances under which the payment should not be required, even where it could legally be enforced, and we think it the spirit of the law that this large discretion with which the governor is invested extends to the time of payment of the forfeiture, whether after judgment or before.” To the same effect is Walker v. State (Tex. Civ. App.) 103 S. W. 2d 404. It is interesting to note that the Legislature has construed Art. 6, § 18 of the Constitution as giving the Governor authority to remit a forfeited bail bond. Ark. Stat. § 43-2818 provides: “The Governor is hereby prohibited from considering or granting any application for pardon, or remission of forfeiture of bail-bond until there is filed in his office a certificate of the county clerk, or the affidavit of two [2] persons known to be credible, that the application for such pardon or remission of forfeiture has been published as hereinafter provided.” [Emphasis ours] The State also maintains that the proclamation is invalid because of the provisions of § 1 of Act 154 of 1903 (Ark. Stat. § 43-2818) quoted above. It will be noticed the Act requires proof of publication that the application for such pardon or remission of forfeiture “has been published as hereinafter provided,” but the Act then fails to specify any method by which publication of the application for remittitur of the bail bond is to be made. This incompleteness might not be fatal to the publication requirement if the courts could reasonably say that any kind of publication would suffice. But § 2 of the Act (Ark. Stat. § 43-2819) provides: “In applications for pardon in all cases of convictions for felony, and the offenses of wife-beating, unlawful carrying of weapons and the unlawful sale of liquors,, the application setting forth the grounds upon which the pardon is asked, together with a list of the signers or petitioners uniting in the request for pardon, shall be, published for two [2] insertions in a weekly newspaper,, if one [1] be published therein, in the county where the-conviction was had, or if the conviction was had in a county other than that in which the offense took place, then in the county where the offense was committed, in addition to the county where the conviction was had.” And § 3 (Ark. Stat. § 43-2820) provides: “In all cases of conviction for offenses other than those above mentioned, the publication of the intended application shall be made by posting the application,, containing a statement of the grounds upon which the pardon is asked, as well as a list of the signers to any petition asking that the same be granted, in front of the usual entrance door of the courthouse of the county or counties, as above provided, for the period of ten [10] days prior to the presentation of such application to the Governor.” Thus, it is clear that there must be publication of one kind of notice of the application for a pardon for wife beating, etc., and another kind of publication for certain other offenses. Neither method of publication of the intent to apply for a pardon applies to applications for a remittitur on a forfeited bail bond. In these circumstances it is obvious that the Act requiring publication of the application for a remittitur is incomplete and cannot be enforced. At the beginning of Act 154 of 1903 there is a synopsis of each section of the Act, and a publication of the application for the remission of a forfeited bail bond is not mentioned. It would be conjecture pure and simple for this Court to say that by Act 154 the General Assembly intended that publication of an application for remittitur of a forfeited bail bond should be made in the same manner as the publication required in applications for a pardon in the case of wife beating, felonies, etc., or by the same kind of publication required for other offenses. This Court said in Jones v. Lawson, 143 Ark. 83, 220 S. W. 311: ‘ ‘ The Court cannot adopt a conjectural interpretation of a statute to solve the doubt. If no judicial certainty can be settled on as to the meaning of the statute from its language, the court is not at liberty to supply one. There must be a competent and definite expression of the legislative will to accomplish that result.” The fact that the statute dealing with applications for the remittitur of a forfeited bail bond is incomplete does not affect the authority of the Governor to remit such forfeiture. Horton v. Gillespie, 170 Ark. 107, 279 S. W. 1020, was a case involving the authority of the Governor to issue a pardon.' There the Court said: “Legislation which denied the right to pardon except in cases of treason and impeachment, or which so hampered the right as to make the right substantially unavailing, would be void as an abridgment of the power conferred.” The same thing is true with reference to the authority of the Governor to remit a bail bond forfeiture. Under the Constitution the General Assembly has the power to prescribe rules and regulations concerning the granting of remittiturs of forfeited bail bonds. But the fact that the Legislature has not prescribed a method for publishing the application for the remission of a bond forfeiture does not affect the authority of the Governor to make such remission. Reversed, with directions to set aside the judgment rendered on the bond forfeiture.