The majority opinion overlooks Sec. 1058 [22-1058], title 22, O.S. 1941, wherein it is provided that the appeal bond shall be conditioned that the defendant will not depart without leave of the court, meaning the Criminal Court of Appeals; and the bond in this case contained the provisions provided by this section of the statute. The majority opinion misinterprets the ruling of this court in Collins v. State, 169 Okla. 486, 37 P.2d 827. In that case the defendant Q.P. McGee appealed a case from the district court of Craig county, Oklahoma, and without obtaining the permission of the Criminal Court of Appeals left this state, and his bond was forfeited, although he had the permission of the county attorney and the Attorney General and of the judge of the trial court to leave the state; and on a motion of the surety on the supersedeas bond on the appeal to the Criminal Court of Appeals to set aside the order of forfeiture, *Page 528 the same was denied, and on appeal to this court the action of the trial court was affirmed. In the case at bar, there is no question but that Buster Lee Gibson left the State of Oklahoma without the permission of the Criminal Court of Appeals, and that at the time he was picked up by the sheriff of Logan county he was in the hands of the Kansas Bureau of Investigation at Topeka, Kansas. It is not denied that he was, during the month of February, 1947, in jail at Manhattan, Kansas. By leaving the State of Oklahoma without the permission of the Criminal Court of Appeals, Gibson forfeited any right that he might have had to have his appeal passed upon. The appeal could have been dismissed and the case sent back to the district court and the bond forfeited.
The majority opinion complains that the defendant and his bondsmen were not notified of the affirmance of the case in the Criminal Court of Appeals; but counsel for the defendant knew that the action of the trial court in Buster Lee Gibson's case had been affirmed, and had filed a petition for rehearing. He was on notice that it would soon be necessary for Buster Lee Gibson to appear in court should the petition for rehearing be denied, and was also cognizant of the fact that the petition for rehearing would be passed upon within a reasonable time after its filing, and it was his duty and responsibility to notify the bondsmen of Buster Lee Gibson that Gibson should be made available that action might be had in the trial court after the mandate had been returned from the Criminal Court of Appeals. The petition for rehearing was overruled on November 26, 1947, and the mandate was issued by the Criminal Court of Appeals to the district court of Logan county on January 27, 1948, a period of more than two months. There is nothing in the law that requires any notice of the filing of the mandate to be served upon the defendant or his bondsmen. Sec. 1072 [22-1072], Title 22, O.S. 1941, provides as follows:
"It is hereby made the duty of the court clerk in all counties, upon receipt from the Clerk of the Criminal Court of Appeals of any mandate or order of the Criminal Court of Appeals, to immediately and without any order from the court, or judge thereof, to spread said mandate or order of record in the proper court, and to issue and place in the hands of the proper officer appropriate process for carrying out such mandate or order."
The mandate from the Criminal Court of Appeals was spread of record on February 3, 1948, at which time the defendant did not appear and submit himself to the judgment of the court, and he and his bondsmen were called in open court and failed to respond, and the bond was forfeited, and a proper warrant issued for the arrest of Buster Lee Gibson. The only persons to testify in behalf of the bondsmen were Ernest West, one of the bondsmen, and Owen F. Renegar, the attorney for the defendant. West testified that he did not know anything about the action of the Criminal Court of Appeals on the appeal of Buster Lee Gibson until he was sued on the bond in a civil suit. He testified that he did not know where Buster Lee Gibson was at all times, but that he knew Gibson's attorney. To show that the witness was an experienced bondsman, we call attention to his testimony, as follows:
"Q. Do you feel that it is not your duty to look into these matters when you are on a bond with these defendants? A. I try to keep up with the people I sign bonds for, as much as I can."
Owen F. Renegar, the attorney for Buster Lee Gibson on the motion to set aside the bond forfeiture, testified that when the opinion of the court affirming the action of the district court of Logan county was issued in October, 1947, he immediately filed a petition for rehearing, and that he did not get notice of the affirmance on January 27, and no information that the judgment *Page 529 would be spread of record on January 29, 1948; that was the date that the mandate was sent to the district judge of Logan county informing him that the case had been affirmed on October 15, 1947, and directions given him to cause such affirmance to show of record in his court, and to take such further action in accord with the opinion. Neither was the mandate spread of record on January 29, 1948; it was only filed. He did not testify that he did not have notice of the overruling of the petition for rehearing. He knew that it was his duty to notify Gibson's bondsmen of the action of the Criminal Court of Appeals in order that they could have him available when needed by the trial court. He testified that Gibson did call him about once a week from somewhere, and that Buster Lee Gibson's father kept in touch with him; but he did not testify that he told Buster Lee Gibson or the bondsmen that there had been a decision affirming the trial court in the Criminal Court of Appeals. Sec. 1108 [22-1108], Title 22, O.S. 1941, provides for the forfeiture of bail, and if at any time before final adjournment of court the defendant or his bail appear and satisfactorily excuse his neglect, the court may direct the forfeiture to be discharged upon such terms as may be just. The defendant, Buster Lee Gibson, at no time appeared in the trial court after the mandate had been returned, to in any way excuse his conduct in leaving the state and not being present at the time the mandate was spread of record. In Seaba et al. v. State, 144 Okla. 295, 290 P. 1098, a case where the facts are very similar to those in the case at bar, this court held that it was not the duty of the sheriff or county attorney to keep the plaintiff in error advised as to what action was taken in his case by the Criminal Court of Appeals, but that it was the duty of the plaintiff in error, Carl Seaba, and his attorney to keep advised concerning the proceedings in the Criminal Court of Appeals, and that had they made any inquiry of the Clerk of the Criminal Court of Appeals or of the district court of Kay county, they could, with the exercise of ordinary diligence, have discovered that the case had been affirmed and the mandate spread of record in the district court of Kay county. In that case the action of the Criminal Court of Appeals and the spreading of the mandate of record were done exactly as in this case, and the action of the trial court in that case in refusing to set aside the bond forfeiture was affirmed, as it did not clearly appear that the trial court had abused its discretion. The opinion in that case states that "abuse of judicial discretion is a discretion exercised to the end or purpose not justified by, and clearly against, reason and evidence." The record showed that, in the case at bar, Buster Lee Gibson had been convicted of burglary and sentenced to five years in the State Penitentiary at McAlester; that his case has been passed upon by the Criminal Court of Appeals; that he had left the State of Oklahoma without permission of the Criminal Court of Appeals and in violation of the provisions of both the statute and the bond; that he had been confined for at least two weeks in the jail at Manhattan, Kansas, and that he was picked up more than two weeks after the mandate was spread of record by the sheriff of Logan county, Oklahoma, in Topeka, Kansas, and taken from the custody of the Kansas Bureau of Investigation, and that his record with the Federal Bureau of Investigation, commonly known as his "rap sheet", showed that he had been arrested 26 times, and that at no time had he appeared before the trial judge to in any way excuse his action in not being present when the mandate was spread of record. In face of our statutes and decided cases, I do not see how any reasonable judge could have set aside the forfeiture in this case.
Under the majority opinion, any person acting as bondsman for a defendant who is out on bail and forfeits *Page 530 his bond and is recaptured and placed in a penal institution, would be entitled to be released from any liability on the bond. It is to be remembered that some of the bondsmen in this case are very clearly not gratuitous bondsmen, but bondsmen for hire. The boy's father apparently was on his bond, and he had some idea where his son was, and it was his duty to see that his son stayed within the boundaries of the State of Oklahoma unless he had the permission of the Criminal Court of Appeals to leave the state. As has been said, it was the duty of the lawyer and the defendant, and it was also the duty of all the bondsmen, to see to it that Buster Lee Gibson did not leave the state and was ready to answer in the district court of Logan county to the judgment which was affirmed in his case. The rule of the majority opinion permits bondsmen to be careless and negligent and to reap all the benefit from the efficiency of the law-enforcement agencies of the state and of the nation. A district judge who would vacate a forfeiture in a case of this kind would be doing the state a disservice and the prosecutor, whose duty it is to see that proper bonds are made, an injustice.
The decisions relied upon by the majority opinion are cases in which the bond was forfeited prior to trial, and in which there was some valid reason offered for the nonappearance of the defendant at the trial. It is the general rule that the arrest and imprisonment of the accused in proceedings in another jurisdiction than that in which the recognizance was entered into, and in which the defendant was to appear, is not sufficient grounds for setting aside the bond forfeiture. See 8 C.J.S., Bail, § 92, note 34; Weber v. United States (10 Cir.) 32 F.2d 110; State v. Douglas, 91 W. Va. 338, 112 S.E. 584.
I dissent.