State v. Williams ( 1922 )

Robinson, J.

In Cass county defendant was accused of carrying concealed-weapons and bound over to the district court. His wife borrowed and deposited $1,400 as bail for his appearance at the November term of the district court. When his case was called he was civilly dead. It was as impossible for him to appear as if he were actually dead. He was at Stillwater in the state’s prison under a sentence for life on a charge and conviction of bank robbery. When his case was called in the district court of Cass county, his counsel who had received some good pay, failed to appear for him and plead the fact that he was legally dead and in the penitentiary at Stillwater, Minn., and that his appearance had become an impossibility. Hence the court declared the forfeiture of his bail money. In 1922 the defendant and his wife on proper affidavits made a motion to vacate the forfeiture. On May 8th the motion was denied. The case is before this court on an appeal, and on a stipulation that it be submitted on the record and on briefs filed by counsel.

The wife makes affidavit sho'wing that on her property she borrowed the bail money. She sent $1,500 to Mr. Barnett, who appeared as counsel for the defendant. By Laws 1915, chap. 83, the carrying of concealed weapons is made a felony punishable by imprisonment in the penitentiary not more than two years, or in the county jail not more than one year, or by a fine of not more than $100, or by both such fine and imprisonment. The minimum penalty is a fine of $100, and it is seldom that a greater penalty is imposed for the mere carrying of concealed weapons without any attempt to use them. The bail exacted in this case is grossly excessive, and it is suggested that the real purpose of fixing the bail at such a figure was to hold the defendant awaiting extradition papers. For the purpose of the motion we may well assume that defendant was guilty of carrying concealed weapons, a .32 revolver, and that he was guilty of the charges preferred against him in Minnesota, and that he was justly sentenced and imprisoned for life.

It appears that on the motion to undo the forfeiture counsel for the state insists that defendant should have remained in this state, and that his arrest in Minnesota does not excuse the default. But that is rather technical. I f he had not gone to Minnesota, we may well assume that he would have been forcibly taken there. We may assume that he has g'oten his just deserts, and that this state is just as well rid of him as if he had killed himself, and in that way made it impossible for him to appear in the district court of Cass county. The $1,400 was put up to secure the appearance of defendant, and by his fault or misfortune his appearance became impossible. If we allow everything that has been charged against defendant, it is no reason for robbing him, or his wife, who put up the bail money. There is no honesty in retaining the money. While demanding honesty of all men, it behooves the state to set an example of honesty. It is not for the state to adopt the principle that he may take who has the power, and he may keep who can. The showing is that defendant’s wife borrowed'the money by mortgaging her property. Defendant and his wife join in the petition that the forfeiture be vacated and the money refunded to the wife, after deducting all the actual court expenses.

The motion is fair and reasonable. Order denying the motion is reversed.