State v. Mallory , 266 N.C. 31 ( 1965 )

145 S.E.2d 335 (1965) 266 N.C. 31

STATE of North Carolina
v.
Mae MALLORY, Harold Reep, Richard Crowder, John C. Lowry, and Resolute Insurance Company and Tidewater Bonding and Surety Agency, Inc., Sureties for Mae Mallory, Harold Reep and Richard Crowder.

Nos. 509, 510.

Supreme Court of North Carolina.

December 15, 1965.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Ralph Moody for the State, and Smith & Griffin, by C. Frank Griffin, Monroe, for Board of Education of Union County.

Mitchell & Murphy, Raleigh, and W. B. Nivens, Charlotte, for defendant appellants Mallory, Reep, Crowder and Lowry.

Seawell & Harrell, by Bernard A. Harrell, Raleigh, for defendant appellants Resolute Ins. Co. and Tidewater Bonding & Surety Agency, Inc.

PARKER, Justice.

The individual defendants and the corporate defendants have brought up separate appeals from the same judgment. We have consolidated these appeals for the purpose of decision in one opinion.

The individual defendants here have two assignments of error: (1) to the entry of the judgment absolute on their appearance bonds, and (2) to the denial by Judge McConnell of their motion for a dismissal of the bond forfeitures entered against them and for a striking of the judgments nisi which were entered against them at the May 1965 Session. The individual defendants did not except to Judge McConnell's denial of their motion. "This Court has universally held that an assignment of error not supported by an exception is ineffectual." Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223.

The corporate defendants here have one assignment of error, and that is to the entry of the judgment absolute on the appearance bonds they signed as surety.

It is well-settled law in this jurisdiction that an exception to the judgment presents the face of the record proper for review, and the review is limited to the questions whether error of law appears on the face of the record proper and whether the judgment is regular in form. 1 Strong's N.C. Index, Appeal and Error, § 21, and Supplement thereto, Appeal and Error, § 21.

The contention of the individual defendants and of the corporate defendants is this: When the Supreme Court in its decision on the appeal of the individual defendants reported in 263 N.C. 536, 139 S.E.2d 870, quashed the indictments against them, there was then no formal and valid charge against the individual defendants, and the individual defendants and the corporate defendants were by this decision released and discharged from any liability on their appearance bonds. With this contention we do not agree.

The Court said in State v. Schenck, 138 N.C. 560, 49 S.E. 917: "It is said by the highest authority that a recognizance (or bail bond) in general binds to three things: (1) To appear and answer either to a specified charge, or to such matters as may be objected; (2) to stand to and abide the judgment of the court; and (3) not to depart without leave of the court; and that each of these particulars are distinct and independent. This was said, too, with reference to a bail bond worded precisely like the one in this case. It was contended by counsel in that case, which we will presently cite, that the stipulation not to depart the court without leave was an unusual one and of no binding force whatever, and, in answering this contention, the court said: ``That a stipulation of this kind was valid and obligatory at common law is not to be doubted. It was so declared more than 30 years ago by this court after full consideration.' State v. Hancock, 54 N.J.Law, 393, 24 A. 726. That was a well-considered case, and seems to be a conclusive authority against the appellant upon the main question presented in the record."

State v. Hancock, 54 N.J.L. 393, 24 A. 726, is in point here. The facts of that case are as follows: One Bush, being under an indictment for a statutory offense, entered into a recognizance with the defendant, Hancock, as his surety, the recognizance containing a condition "for the appearance" of Bush "to answer said indictment on November 18th, 1890, and not to depart the court without leave." Before the day designated for trial, the indictment was quashed, and a motion was made thereupon to discharge Bush's bail. That motion was refused. Subsequently, Bush, having been again indicted under the same statute in a different form, notice was given to his surety to produce him before the court on a given day, and, default being made at the time specified, the recognizance was duly forfeited of record. The position taken by Hancock is, that one of the express stipulations of the obligation entered into by him should be held by the court to be of no binding force whatever. He stipulated that Bush "should not depart the court without leave." That stipulation has been broken, and Hancock asserts that such breach is nugatory inasmuch as the stipulation has no legal efficacy. The opinion, written by Chief Justice Beasley, states:

"That a stipulation of this kind was valid and obligatory at common law is not to be doubted. It was so declared more than 30 years ago by this court, after full consideration, in the case of the State v. Stout, 6 Halst. 125 (11 N.J.L. 124.) It was there judicially determined that a recognizance in general binds to three things: (1) To appear to answer either to a specified charge, or to such matters as may be objected; (2) to stand to and abide the judgment of the court, and, (3) not to depart without leave of the court; and that each of these particulars was distinct and independent. The court further said that the party was not to depart until discharged, although no indictment should be found against him, or although he be tried and found not guilty by a jury.

* * * * * *

"Thus far the subject seems to be free from difficulty, but there is another aspect of it which has laid the ground for the principal argument in behalf of the defense. It is argued that our statute relating to recognizances has annulled the condition usually contained in them, to the effect that the culprit shall not depart the court without leave. The statutory language thus relied on is this: ``That every recognizance, entered into before any court having criminal jurisdiction in this state, shall remain in full force and effect until the cause in which said recognizance shall be entered into shall be finally determined, or the same discharged by the order of the court.'

"In the application of this statute to the case before the court, it was insisted by the counsel of the defendant that, the present recognizance having been given in a proceeding under the indictment in question, when that indictment was quashed there was, within the purview of the act, a final determination of the cause to which the recognizance related. It was argued that the only cause pending before the court was the indictment, and that to annul it was to annul, and consequently to determine such cause.

"It will be observed that in this course of reasoning it is assumed that the indictment is synonymous with ``the cause,' but this is not to be admitted. The indictment is not the cause; the accusation of criminality is the cause, and the indictment is an incident in pursuing the accusation. It is true that the term ``cause' sometimes expresses a suit or action, but it has a broader signification, which comprises the prosecution of a purpose or object, and it seems to me that the word ``cause' in this act is used in the sense expressed by the word ``prosecution'. Taken in this signification, the cause cannot be said to be finally determined when the indictment is quashed; for the indictment is but a formal part of the prosecution.

"All rational intendment is adverse to the manner and special meaning of the word cause as employed in the statute for it is hardly conceivable that it was the legislative purpose to absolve a criminal who was under bail, from all obligation to render himself in court in the event of the existence of a flaw in the indictment. In this way criminals of the highest grade and of the most dangerous character would often escape the pursuit of justice. In my opinion, the quashing of this indictment did not finally determine the cause; that is, the prosecution of this culprit.

"And, in addition to this view, it seems to me that the contention on the part of the state, that the statute under consideration has not the effect of invalidating the legal operation of the recognizance in any particular, is well founded. The statutory language does not express and there is no indication of such a purpose. As we have seen, the common law bound the recognizor to appear up to the final determination of the prosecution, and then, beyond that occurrence, to remain in the power of the court until he was discharged by the order of the court. The statute declares that the recognizance shall remain in full force until the final determination of the cause, and so far it is merely declaratory of the common law; but it does not say that the recognizance shall have no effect beyond the event so designated. The familiar rule is that statutes derogatory of the common law are to be construed strictly, and it is not perceived how, in the light of such a principle, it can be claimed that the effect which on general legal rules is to be given to this clause of the recognizance has been annulled by an act that has no reference to it in terms or by necessary implication, and when such abolition would in a large degree be hostile to public policy.

"Let the circuit court be advised that it is the opinion of this court that, as the case stands upon the certificate before us, the procedure on this recognizance is sustainable."

The third headnote in the New Jersey Reports reads:

"A culprit giving a recognizance to appear to an indictment, and not to depart from the court without leave, is not discharged from his obligation by the quashing of the indictment."

In United States v. White, Case No 16,678, 28 Federal Cases, Circuit and District Courts, 1789-1880, the Court held, as stated in the second headnote:

"A recognizance, to appear in court from day to day, to answer to a certain indictment, and not to depart without the leave of the court, is not discharged by the quashing of that indictment, but remains in force until the defendant has leave from the court to depart, and if a new indictment be found, he and his bail are bound for his appearance to answer such new indictment."

In State v. Warden, 119 Wash. 290, 205 P. 372, the first headnote in the Pacific Reporter reads:

"Obligation of bond given under Rem. & Bal. Code, § 1957, by one bound over to the superior court for trial conditioned to appear and answer the charge is not discharged by demurrer being sustained to the information first filed, because of its failure to state some of the statutory elements of the offense, but requires answer to the ``charge,' which is the crime, and not a particular pleading on amended information being filed."

In its opinion the Court said:

"The obligation of the bondsmen was to see that the defendant appeared in court and answered to the charge, which was that of rape, and they are not discharged on their obligation until the defendant has been released from that charge. The obligation was not to answer the complaint actually on file, but to answer to the charge of rape, whether presented by the complaint or subsequent information properly alleging the crime."

We have found meager authority on the precise question before us for decision. From the number of cases on the subject we have read, it seems to be generally held that whether the quashing of an indictment will discharge the bail must be determined by the conditions of the bond in question. 8 C.J.S. Bail § 79d; 8 Am.Jur.2d, Bail and Recognizance, § 137; Annotation 20 A.L.R. 604.

In State v. Eure, 172 N.C. 874, 89 S.E. 788, the Court said:

"An appearance bond by its terms, and under the uniform ruling of the court, requires that the defendant appear term after term until he is discharged on a verdict of acquittal or by order of the court. An appearance bond is in lieu of custody in jail, in which case the defendant could not be released until discharged by order of the court."

In language crystal clear Mallory, as principal, and Resolute Insurance Company, as her surety, entered into an obligation firmly binding themselves to the State of North Carolina in the sum of $15,000, for which payment well and truly to be made, they bound themselves, their heirs, executors, administrators, and assigns, jointly and severally. This obligation has a condition expressed in language also crystal clear that whereas Mallory has appealed her conviction and sentence for kidnapping in cases Nos. 1088 and 1089 to the Supreme Court and the court has set her appearance bond at $15,000, "Now, therefore, if the above bounden defendant, May (Mae) Malory shall make her appearance AT THE MAY 4th, 1964 TERM OF UNION COUNTY SUPERIOR COURT AND AT EACH SUCCEEDING TERM OF SAID COURT PENDING THE FINAL DISPOSITION OF THE ABOVE CASES, AND SHALL NOT DEPART THE SAME WITHOUT LEAVE OF THE COURT, THEN THIS OBLIGATION SHALL BE VOID; OTHERWISE TO REMAIN IN FULL FORCE AND EFFECT." Her appearance bond "is in the nature of a conditional judgment that may be discharged by performance of conditions or enforced on breach of conditions." 8 Am.Jur., 2d, Bail and Recognizance, § 2. Reep, as principal, and Resolute Insurance Company as his surety, and Crowder, as principal, and Resolute Insurance Company as his surety executed appearance bonds identical with the appearance bond of Mallory, except that Reep's bond is in the amount of $7,500 and Crowder's is in the amount of $10,000. In language crystal clear Lowry, as principal, and Mrs. Marcia Lowry as his surety entered into an obligation acknowledging themselves indebted to the State of North Carolina in the sum of $5,000. This obligation has a condition expressed in language also crystal clear that "the conditions of the above obligation are such that if the above-bounden defendant John Cyrl Lowry shall make his personal appearance at the next term of this court, to be held on May 4, 1964 and at each succeeding term of said Court pending the final disposition of the above cases, 19..., and not depart the same without leave, then this obligation to be null and void, otherwise to remain in full force and effect." Lowry or his wife posted a cash bond in the sum of $5,000.

This Court closed its opinion in the case quashing the indictments against the individual defendants with these words:

"The indictments are quashed and the verdict and judgments are vacated for want of valid indictments to support them. It does not follow that defendants are entitled to discharge and dismissal of the charges. If the State so elects it may send new bills and if they are returned true bills by an unexceptionable grand jury, defendants may be tried thereon for the offenses alleged." (Emphasis supplied.)

It is manifest from the clear and express language of all four appearance bonds here and from the clear and express language of this Court in its opinion quashing the indictments against the defendants that the quashing of these indictments did not discharge the appearance bonds, but they remained in full force. When the new indictments were found against the four individual defendants here at the 3 May 1965 Session of Union County Superior Court, each of these four individual defendants at that session were called out in open court, and each one failed to answer, which was a breach of the conditions of each one of the four appearance bonds by each one of the four individual defendants. Pursuant to G.S. § 15-113, notices of judgment nisi were issued on 10 May 1965 in respect to the Mallory, Reep and Crowder bonds, and served on 28 May 1965 on Richard F. Taylor, Attorney in Fact for Resolute Insurance Company, but the individual defendants could not be found for service on them of the notices. The contention of Resolute Insurance Company that notices of judgment nisi were not served upon it as required by G.S. § 15-113, but only served on the Attorney in Fact is without merit. The three appearance bonds executed by Resolute Insurance Company are signed Resolute Insurance Company, "By Richard F. Taylor, Attorney in Fact." Service on him was service on Resolute Insurance Company. Further, the corporate defendants filed an answer to the notices of judgment nisi, which alleges no sufficient reason why the appearance bonds signed by Resolute Insurance Company should not be enforced for breach of their conditions as above set forth.

In respect to Lowry's cash bond, G.S. § 15-113 reads in relevant part:

"Provided, where the defendant deposits cash in lieu of bond or recognizance, upon his failure to appear for trial in accordance with the requirements of such cash bond then judgment nisi on the cash bond shall be entered and the defendant shall be charged with legal notice thereof without issuance or service of a scire facias or other notice and after thirty days or at the next term, whichever is later, judgment absolute forfeiting and condemning the cash bond shall be entered if the defendant then fails to appear or upon appearance fails to show legal excuse of other satisfactory explanation of his nonappearance at the term when judgment nisi was entered."

Judge McConnell properly and correctly entered judgment absolute on the three appearance bonds signed by Mallory, Reep, and Crowder respectively as principals and Resolute Insurance Company as surety on the bonds of each of them, and also in entering judgment absolute forfeiting and condemning Lowry's cash bond.

The contention of the individual defendants that "the failure of the solicitor to notify these defendants of his election to proceed with new indictments, and the fact that the solicitor had never sought to admit defendants to new appearance bonds, constitute a denial of their rights under Article I, Section 17, of the North Carolina Constitution, and of the due process clause of the Fourteenth Amendment to the United States Constitution," is totally without merit. The individual defendants had actual knowledge of the contents of the appearance bonds they signed as principals, and have actual knowledge of the opinion rendered in their case by this Court, or are charged with notice of it.

At the 30 August 1965 Session of the Superior Court of Union County, all four individual defendants were called and failed to answer, and so far as the record and briefs before us disclose all four are still outside the State of North Carolina. In passing we might add that G.S. § 15-122 provides: "The bail shall have liberty, at any time before execution awarded against him, to surrender to the court from which the process issued, or to the sheriff having such process to return, during the session, or in the recess of such court, the principal, in discharge of himself * * *."

Judge McConnell's judgment orders that the bonds of Mallory, Reep, and Crowder, and the cash bond of Lowry, be, and they hereby are, forfeited absolutely. When this case is certified back to the Superior Court of Union County, the presiding judge shall add to the judgment language in substance as follows: It is further ordered that the State of North Carolina shall have and recover from Mallory as principal and Resolute Insurance Company as surety the penalty of her appearance, bond in the sum of $15,000, and similar language as to Reep's and Crowder's appearance bonds. See State v. Bradsher, 189 N.C. 401, 404, 127 S.E. 349, 351, 38 A.L.R. 1102; 18 Am.Jur., Pleading and Practice Forms, p. 189, "18:194. Order for Judgment on Scire Facias—Against Sureties on Forfeited Bond or Recognizance."

In the separate appeal of Resolute Insurance Company it appears from a stipulation by counsel of that company and the solicitor that Tidewater Bonding and Surety Agency, Inc., is an agent of Resolute Insurance Company.

The assignments of error by the individual defendants are overruled. The assignment of error by the corporate defendants is overruled.

The judgment below is

Modified and affirmed.