Smith v. State

George Rose Smith, Justice. This is a bond forfeiture proceeding. The appellant Smith, charged with a violation of the Arkansas Securities Act, entered a plea of not guilty and was released on a $5,000 cash bond put up by his father. Smith’s attorney withdrew from the case. The prosecuting attorney, desiring to know whether an attorney should be appointed for Smith as an indigent, apparently brought about the sending of a notice by the court clerk for Smith to appear on November 22, 1977, “for arraignment[s] only.” Smith, having already been arraigned, did not appear, and the court forfeited the bond. This appeal is from an order refusing to set aside the forfeiture. We consider this case to be essentially controlled by our holding in Central Cas. Co. v. State, 233 Ark. 602, 346 S.W. 2d 193 (1961). There we said: “It is well settled that the giving of bail bonds is to be encouraged, not only because the accused is ordinarily entitled to his freedom before the trial but also because the state is relieved of the expense of maintaining the prisoner until the case can be heard.” There we found that the defendant’s failure to appear was partially excusable. We reduced a $7,500 forfeiture to $750, which was described as an amount sufficient to reimburse the county for various costs such as jury expenses and witness fees (some 25 or 30 witnesses having been summoned). In the case at bar it is important to note that the case was not set for trial on November 22, the day when Smith failed to appear. The prosecutor merely wanted to know whether an attorney should be appointed. The State could not have been put to any substantial expense by Smith’s absence. The notice that was sent to Smith was inaccurate, in that he had already been arraigned. He made some effort to protect himself, by telephoning from Washington, D.C., to two Arkansas attorneys, neither of whom was in a position to appear for him. Smith then made a two-day business trip to London, so that he failed to appear in court as directed. We do not imply that Smith was blameless in the matter. The trial judge evidently believed that Smith may have been attempting to avoid the possibility of being served with process in a federal case pending in another state. The judge may have believed that Smith had previously delayed this case without cause. The judge may also have believed that Smith made inconsistent statements in connection with his attempt to have the forfeiture set aside. Even so, the case was not set for trial on the date of Smith’s default, the state has not been put to any substantial expense as in the case cited, and Smith did actually submit himself to the court’s jurisdiction with promptness. In the circumstances a forfeiture of $1 ,- 000 is sufficient and proper. As so modified the judgment is affirmed. Fogleman, Byrd, and Hickman, JJ., dissent.