(dissenting)—The statute does not provide that the judge shall vacate the judgment upon such terms as may be just and equitable, but that he may do so. State v. Olson, 127 Wash. 300, 220 Pac. 776, mentioned by the majority, lays down the test to be used by us in reviewing the discretion of the trial court in matters such as this:
*160“The return of the bail is made to rest, in the code, upon such terms as shall be just and equitable, and this court in State v. Johnson, 69 Wash. 612, 126 Pac. 56, and State v. Jackschitz, 76 Wash. 253, 136 Pac. 132, has said that the order of the court ‘will not be reversed on appeal except for a manifest abuse of discretion,’ following the general rule as announced in 3 R. C. L. 63, to the effect that in ‘the absence of evidence of flagrant abuse the appellate court will not interfere.’ While it might have been entirely proper and even more appropriate to have set aside the entire forfeiture, still, this court cannot say that there was a ‘manifest’ or ‘flagrant’ abuse of discretion. Recognizing the encouragement which the law accords to the giving of bail and the return of fugitives to serve their sentences, and the encouragement which should be afforded vigilant and thrifty bondsmen in assisting in the thorough administration of the law’s penalties, still, as we have indicated, the return of the bail money is a matter in which the trial court has a wide latitude for the exercise of its judgment, and we are not prepared to say that it was improperly exercised in this case.”
The reasons for the action of the trial court in the case at bar are given in its oral decision:
“It will be remembered in this connection that the two defendants named in the case, that is to say, Cullen and O’Day, were imprisoned in the county jail on or about the 14th day of September, 1948. On the apprehension of the Defendant Cullen, the bail was endorsed in the sum of $15,000.00 On or about the 21st of September, 1948, the Court, on Motion and representation and showing of C. C. Chavelle of Chavelle & Chavelle, who were the counsel for these parties, reduced the bail from $15,000.00 to $7,500.00 which was the first mistake that the Court made in this proceeding. . . .
“An amended information was filed after the bail was reduced from $15,000.00 to $7,500.00 and either it shows categorically on the face, I am not certain, but at least it was understood between Mr. Chavelle, and Mr. Grady and the Court, that the reduction would be made on the condition that a Surety Bond, or something equal'thereto, would be furnished, and on the 21st of September, the Defendant Cullen, and others, particularly Prentice J. Frazier, being a professional bail bondsman as he informed the Court, and as is understood by all parties, made this Bond, on which he was justified before a Judge in King County.
*161“Then the further steps are all here and the Court wanted to be sure about one thing before disposing of the matter.
“It will be remembered that a jury term was set up primarily for the purpose of disposing of these two cases and that the jury term was continued by an appropriate Order before the thirty day period had expired, for a period of thirty days. This case was continued several times on the request of the attorney of record for the Defendant Cullen, and finally set up for a time within at least two or three days, or very close to the end of the second term. Mr. Chavelle came over here, I think at the time that O’Day was sentenced by this Court to a term in the State Penitentiary,— and he told me at that time that he was aware of the fact that this man was fugitive, or at least could not be found in the jurisdiction at the time of the last setting.
“I think that this case is very close to the Van Wagner case. That matter came on, on a motion of the Prosecutor to forfeit the Bond.
“This man, according to his own testimony at the time he was examined here in Court, admitted that he had left or that he had fled, and as he says, without having advised his wife of the fact, whether that is true I do not know, but it is true that clearly he had fled and had no intention of appearing at the time of the trial, and did not appear, and his attorney had ample and continuous notice of the setting of the case, and the only difference that I can see between this matter and the Van Wagner case is that in that case the man, Himelhoch, was the bondsman instead of Frazier, and in that case Van Wagner’s bail was increased and in this one decreased. The utmost good faith was exercised in all of the proceedings, by the Prosecuting Attorney, and particularly in that he did not resist the application to reduce the bail. It says in the Van Wagner case:
“ ‘The principal’s failure to appear was not due to an honest mistake or error on his part. The principal did not voluntarily surrender to his surety or to the Court.’ [16 Wn. (2d) 62.]
“In this case the sureties did succeed in their endeavors to apprehend this man long after the jury term had closed.
“I take it that the bail bond business is like any other business; there are risks involved in the carrying on of it like any other business and whatever the premium was for this bond is not material and of no concern to this court, but it is a matter of common knowledge that all bail bond *162premiums are at least substantial, and I do not think that counsel for the Defendant was fair with the Court, or the Prosecuting Attorney in not telling him at the time this matter- was set that the defendant Cullen was fugitive. It is true, as counsel for the Surety states, that the man was. returned here without expense to the County, and it is also true that Frazier sustained the loss in this matter. There is no showing as to what amount of money was expended by the Surety in apprehending and returning the man, and I don’t know of any way that I can fix that amount. He had expenses as the files show, and the Prosecuting Attorney, stated that there were signs and dodgers and face sheets that published the ‘mugs’ which were circulated up and down the Pacific Coast, and it is further apparent that some private detective, who operates for such outfits as Frazier’s and others found this man and returned him to Frazier’s office or to the police eventually.
“It seems to me that the bail should be forfeited. I cannot see any reason in the world why it should not be. There was nothing said at the time it was argued that appealed to me as illustrating any reason why it should not be forfeited, but I think that I have the impression that the surety should be credited in some amount or to some degree for what they are out of pocket in returning the defendant. ■
“Mr. Grady. I have heretofore advised the Attorney for the Bondsman that I would recommend that a finding should be made that the Bondsman be allowed the sum of $2,000.00 or $2,500.00 that should be remanded to the Bondsman for the surrender of the defendant, and I would so recommend now.”
While I am satisfied from the above that there was no abuse of discretion whatever, there can be no question that, as was said in the Olson case, “this court cannot say that there was a ‘manifest’ or ‘flagrant’ abuse of discretion.” (Italics mine.)
Of course, we should do nothing to discourage the giving of bail in criminal cases. But by the same token we should do nothing to encourage the “jumping” of bail after the defendant has been released. The orderly conduct of criminal procedure requires the defendant to appear when called. His release on bail is expressly conditioned on such appearance, or he must suffer forfeiture thereof. The bail bond *163executed by Cullen and his sureties provided that Cullen should appear before the court in Jefferson county on call. That was a solemn obligation executed by the parties to the bond. In utter disregard of that obligation, Cullen left the state under an assumed name. He informed neither the court, his counsel, nor his bondsman of such departure: nor did he apprise any of them of his whereabouts when eventually his flight ended in Idaho. It is difficult to conceive of a more clear-cut case of deliberate “bail-jumping.”
Recognizing the responsibility of a trial judge to gauge the conduct of criminal procedure in his own county, we have always refused to reverse him in matters of this kind, except for a manifest abuse of discretion. I am fearful that the effect of this decision will be to encourage defendants and bondsmen to disregard the obligations of their bond, and flout the power of the trial judges to call them to task for so doing. In the light of this decision few trial judges would venture to forfeit the bail of a defendant no matter how remiss that defendant might be in making his appearance when called. They are apt to feel that, although the statute has given them the right of discretion, the supreme court has taken it away.
Apparently the prosecutor and judge were both of the opinion that the bondsmen should be reimbursed for the money that they expended in apprehending and returning the defendant, and I suggest that the case be remanded and the judgment modified to that extent.
May 16,1950. Petition for rehearing denied.