People v. McCracken , 11 Mich. App. 553 ( 1968 )

11 Mich. App. 553 (1968) 161 N.W.2d 758

PEOPLE
v.
McCRACKEN.

Docket Nos. 1,375, 1,376, and 1,377.

Michigan Court of Appeals.

Decided May 29, 1968.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney and James L. Shonkwiler, Jr., Assistant Prosecuting Attorney, for the people.

Joseph J. Jerkins, for surety.

BURNS, P.J.

The United Bonding Insurance Company appeals from judgments which were entered upon the forfeiture of 3 recognizance bonds. The question common to each of these consolidated cases is:

"Should a forfeiture of the bond and a subsequent judgment be entered against the surety when the principal is unable to appear because of incarceration by the Federal authorities (in Indiana) and the surety has offered to produce the principal upon his release by the Federal authorities or in the alternative, deposit a sum of money with the court to guarantee the cost of returning the principal upon his release by the Federal authorities?"

The Michigan Supreme Court has stated by way of dictum that the impossibility of the principal appearing at a specified time because of arrest and detention in Michigan would discharge the surety from liability. People v. Robb (1894), 98 Mich. 397, 400. But the Court has not addressed itself to the problem of incarceration outside of Michigan. The majority rule is clear that such imprisonment will not excuse the production of the principal. See State v. Mitchell (1965), ___ Del ___ (212 A2d 873), and relevant cases cited therein on p 885.

United Bonding Insurance Company, as jailer away from jail, was bound at its peril to keep the accused within this jurisdiction.

Judgments affirmed.

QUINN and ZIEM, JJ., concurred.