Pernetti v. People

Laughlin, J. (dissenting):

The papers and points all appear to be improperly entitled. We do not understand that the appellant has brought an action against the People, and we assume that this motion was made in an ex parte action entitled People v. Pernetti.

On the 9th day of May, 1903, the coroner of the county of New York, after holding an inquest upon the death of one Benedetto Madonia, held Messina Genova, who had been arrested for complicity in the murder of the decedent, to bail in the sum $1,500 to answer the charge of homicide. Genova gave a recognizance with the appellant as surety, reciting the charge upon which the principal was held, and the principal and surety therein jointly and severally undertook that the above-named Messina Genova shall appear and answer the charge above mentioned in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court; and if convicted shall appear for judgment and render himself in execution thereof; or if he fail to perform either of these conditions that we will pay to the People of the State of New York” $1,500. Attached to the recognizance was the usual agreement required in the county of New York, by which the principal and surety agreed and consented that if the undertaking should be forfeited judgment might be entered against them, upon filing a copy of the order of forfeiture and the recognizance, for the amount specified, upon which execution might issue forthwith.

The charge upon which Genova was held was investigated by a grand jury of the Court of General Sessions, and dismissed without indictment on the 25th day of June, 1903, but Genova was never formally discharged by the court, nor was the liability of the appellant *396ever formally canceled. On the same day the grand jury, after investigating a charge of perjury against Genova for testimony given before the coroner, returned an indictment against him for the crime of perjury. The appellant was thereupon notified to produce Genova in the Court of General Sessions on the twenty-sixth day of June to plead to the indictment for perjury. Genova failed to appear, and his arraignment upon the indictment was postponed until the twenty-ninth day of June, at which time he also failed to appear, and thereupon the court directed the forfeiture of the recognizance, and a formal order of forfeiture was entered showing that it was ordered on account of the failure of the appellant to produce her principal to answer to the indictment for perjury, and upon this order and the recognizance thejxodgment was entered.

I am of opinion that the judgment should have been vacated. Our attention has been called to several decisions of the con'rts of this State declaring the rule that where a person, against whom a criminal charge is made, is held to bail the recognizance may be forfeited if the principal fails to appear and answer to any indictment that may be found against him upon the same or any other charge. In none of these cases, however, was that doctrine essential to the decision, and in none were the facts similar or analogous to those now before us. These dicta are entitled to great weight as expressing the views of some eminent jurists, but we have often been reminded that they are not regarded as controlling upon the courts wherein they were expressed, or binding upon us. We realize that this would be a convenient rule for the People, but is it a just rule for the accused or his surety ? A man may be held to answer for a misdemeanor and his friends may become satisfied that he is not guilty and, therefore, be willing to become surety for his appearance to answer the charge. I think it is not generally understood that in such circumstances, if the principal be exonerated upon the charge upon which he is held, but in the meantime another charge, perhaps of a more serious nature, is preferred against him, upon facts previously or subsequently arising, which he deems it inadvisable to face, the surety can be held. If the surety be thus liable it cannot be upon the theory that his principal failed to answer the charge upon which he was held or failed to obey any order or direction of the court given concerning the same, but *397merely because he did not produce the principal to the end that upon being discharged upon exoneration by the grand jury from the charge upon which he was held, he might be rearrested upon another indictment or charge. But even this formality was not followed to accomplish the injustice done in this particular case. If the liability of a surety is thus extensive, when it becomes generally known it will in many instances be difficult for persons accused of trivial offenses to obtain their release on hail, and until it becomes so known and understood it will be a serious hardship upon sureties. It is a somewhat novel and startling doctrine that a surety upon a bond reciting that he will be responsible for the accused’s appearance and answering an indictment and for his complying with the directions of the court concerning a particular specified crime upon which he is held, becomes a guarantor of his past and future conduct as well.

The learned counsel for the People is undoubtedly correct in his contention that the failure of the first grand jury to find an indictment does not ipso facto discharge the liability on the recognizance. The charge might again be presented to another grand jury, and if an indictment should be found and the principal should fail to appear to plead thereto undoubtedly the recognizance could be properly forfeited. Doubtless, technically speaking, the liability upon the recognizance is not terminated until the accused is formally discharged by a proclamation in open court in the usual form for a jail delivery. It is not necessary to decide whether the court may require the appearance of one admitted to bail to await the action of the grand jury for the sole purpose of having the usual proclamation made, and discharging him if cause be not shown for his further detention after the grand jury failed to indict and may forfeit the recognizance on his failure to appear, because this recognizance lias not been forfeited upon any such theory. We are of opinion that the provision of the recognizance upon which the People base their claim of a right to forfeit it, for the surety’s failure to produce the principal to answer another and different charge, is not susceptible of that construction. The clauses and shall at all times render himself amenable to the orders and process of the court; and if convicted shall appear for judgment and render himself in execution thereof,” are to be construed together and with reference to the charge recited. The first of these clauses has reference to orders and *398process of the court concerning the charge upon which the principal is held, as, for example, an order increasing the amount of bail or requiring new sureties. This construction is emphasized by the following clause relating to the conviction. Surely it cannot be contended that that clause relates to a conviction upon another and different charge. It is a legal principle firmly established in our jurisprudence that a person accused of crime is presumed to be innocent until he is proven guilty beyond a reasonable doubt. That presumption is sufficiently overcome for the purpose of restraining him of his liberty when a sufficient information has been presented to a magistrate or an indictment has been- filed. The rule contended for by the People is diametrically opposed to this principle, for it seems to involve a presumption not only that a man is guilty of the charge upon which he has been arrested, but that he is probably guilty of other crimes which may be discovered or that he will commit other crimes before he is formally discharged from the charge upon which he is held to bail. If this be so, liow are the People prejudiced by the release of an accused person upon bail ? If they are prejudiced it must be upon the theory that if, before his exoneration upon the charge upon which he is held, they discover that he has committed another crime they are entitled to have him produced to the end that they may arrest him for the other crime. This theory should not be adopted. It is opposed to all our principles of liberty, and the right to be admitted to reasonable bail in a reasonable amount to be determined, not by a consideration of all the crimes that might be committed, but solely by a consideration of the particular crime with which he is then properly charged. We do not question the soundness of those decisions holding that the surety may be held where the indictment is based upon the facts out of which the arrest arose, even though the crime be insufficiently or erroneously specified in the recognizance. Here the facts upon which the arrest was made related to the homicide, and the indictment is based upon subsequent occurrences.

I think, therefore, that the order should be reversed and the judgment vacated.

McLaughlin, J., concurred.

Order affirmed, with costs.