dissenting.
I respectfully dissent.
The majority states that it was the action of Colorado and South Dakota that resulted in the surety’s failure to surrender the defendant. I disagree.
The method for surrendering a defendant by a surety is clearly set forth in § 16-4-108, C.R.S. 1973 (1978 Repl. Vol. 8). The defendant may be surrendered at any time, even while the defendant is in custody on another offense. People v. Jaramillo, 163 Colo. 39, 428 P.2d 67 (1967). Here, the surety could have exonerated itself by surrendering the defendant while he was in custody in South Dakota. This could have been done by asking leave of the court to be removed from the bond and then by delivering a certified copy to the sheriff. People v. Jaramillo, supra.
Moreover, the denial of the warrant by the sheriff’s office is immaterial. The surety did not need a certified copy of the alias warrant to apprehend the defendant itself. Section 16-4-108(l)(c), C.R.S. 1973 (1978 Repl. Vol. 8); see also People v. Loomis, 60 Colo. 202, 152 P. 143 (1915); § 16-3-108, C.R.S. 1973 (1978 Repl. Vol. 8). After locating the defendant, the surety could have brought him back itself, rather than using extradition proceedings. It also could have brought the defendant back as soon as he was released by the authorities in South Dakota.
The surety had the opportunity to return the defendant to Colorado itself, but chose not to do so. See Union Benefit Fire Insurance Co. v. People, 160 Colo. 211, 416 P.2d 368 (1966). Thus, it was the surety’s failure to act which prevented it from producing the defendant.
Accordingly, I would affirm.