I dissent. I take it to be self-evident that the purpose of bail is to insure the appearance of the defendant when required and that *Page 599 the public interest is better subserved by having a fugitive or absconding defendant returned to the court to meet the requirements of justice than by swelling the public coffers with forfeited bail money. This was undoubtedly the underlying purpose and intent of the legislature by the amendment in 1927 of section1305 of the Penal Code. Prior to the amendment the surety on the bail bond was without the remedy of having the order forfeiting bail discharged even though he surrendered the defendant to the court within the twenty-day period, where the neglect of the defendant was not satisfactorily excused. This was true with or without the connivance of the bail in the wrongdoing of the defendant. It is inconceivable that the legislature intended, by the amendment of 1927, to do no more than enlarge the time when the defendant might return or be surrendered by the surety to the court from twenty to ninety days. But this is the effect of the main opinion and the amendment of 1927 is otherwise rendered meaningless and nugatory. The obvious purpose of the amendment was to offer an incentive or inducement to the surety to locate and apprehend the defaulting defendant and the time was enlarged to ninety days for that purpose. Under the main opinion the surety, without fault, is in no better position than he was under the old statute. He may exert much effort and go to much expense in locating the defendant and surrendering him to the court and, however blameless and free from connivance in the wrongdoing of the defendant he may be, he is entirely helpless unless the defendant satisfactorily excuse his failure to appear at the time appointed.
I cannot subscribe to the argument of the majority that a defendant may be found to be entirely blameless and still the bail be guilty of connivance with him. The word "connivance" as applied to one party (in this instance the surety), presupposes some unlawful or wrongful act or omission on the part of another (here the defaulting defendant), that is, some feigned ignorance or acquiescence or encouragement of the surety in the wrongdoing. All of the definitions of the term "connivance" are to this effect. Oakland Bank of Savings v. Wilcox, 60 Cal. 126, at page 137, approved an instruction that "connivance is an agreement *Page 600 or consent, directly or indirectly given, that something unlawful shall be done by another." One may not connive with himself any more than he may conspire with himself. It requires at least two persons to connive. Excusable neglect is incompatible with the existence of connivance and when a defendant has "connived" there can be no excusable neglect. The legislature could have had no reason to extend the time for the appearance of the defendant from twenty to ninety days except to give the surety the opportunity and incentive to apprehend the defendant, return him to the court and, by showing that the default of the defendant, without excuse, was not with the connivance of the surety, enable the latter to save himself from the forfeiture. In no way may this manifestly intended and beneficial result be accomplished except by reading the word "and" as "or" in the amended section.
The amendment in 1929 of section 1306 of the Penal Code, in my opinion, throws no light at all favorable to the construction placed on section 1305 by the majority. Quite to the contrary, section 1306 is in complete harmony with the construction of section 1305 as contended for by the petitioner. The relief from the forfeiture provided for in section 1305 relates to a time within the ninety-day period and before any judgment on the bail bond has or could be entered. The relief provided for in section1306 relates to the time between the entry of the judgment on the bail bond and one year thereafter. Under the latter section the absence of connivance on the part of the surety may be shown by affidavit only, and the relief may be granted to the surety, however culpable the defendant may have been in his default. To say that a nonconniving surety may be relieved under section 1306 as against a grossly offending defendant provided such defendant be returned to court within one year after the entry of the judgment on the bond and may not be relieved under section 1305 when such a defendant is returned to court within ninety days after the order of forfeiture is to do violence to the plain meaning and intent of the legislature in the amendment of section1305 and reduce the law to an absurdity.
Rehearing denied.
Shenk, J., dissented. *Page 601