State v. Novel

356 So. 2d 950, 1978 La. LEXIS 7270
CourtSupreme Court of Louisiana
DecidedMarch 6, 1978
DocketNo. 60510
StatusPublished
Cited by2 cases

This text of 356 So. 2d 950 (State v. Novel) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Novel, 356 So. 2d 950, 1978 La. LEXIS 7270 (La. 1978).

Opinion

SUMMERS, Justice.

By a bill of information filed in May of 1976 the District Attorney of Orleans Parish charged Gordon Novel with conspiracy to commit aggravated arson on March 2, 1976 on the structure located at 330 St. Charles Avenue in the city of New Orleans. La.Rev.Stat. 14:26, 51. In July of 1976, Novel posted a $40,000 appearance bond as principal, with Peerless Insurance Company as surety.

After a first trial resulting in a hung jury, on motion of defense counsel in open court on December 1, 1976 a second trial was set for January 18, 1977. On the day fixed for trial defendant Novel did not appear and the trial was continued on the unsworn written motion of the defense, alleging that Novel was in the intensive care unit of the Medical Arts Hospital in Dallas, Georgia, under the care of Doctor Worthy. Defense counsel alleged that the information had been telephoned to him at 12:30 that day.

The court issued an alias capias for the arrest of defendant, fixing bail at $80,000. The State then moved the court to forfeit the $40,000 bond and the motion was denied “at this time.” In effect the trial judge held the case open to permit Novel and Peerless to file the requisite affidavit of physical disability within a reasonable time.

Thereafter, on February 10,1977, defense counsel filed a letter in the record from Dr. Jerry L. Worthy of Dallas, Georgia, stating that Novel was admitted to the Medical Arts Hospital there at nine o’clock on the morning of January 17, 1977 with complaints, signs and symptoms of an acute myocardial infarction or an impending cardiac problem. Novel, he wrote, was discharged three days later on January 20, 1977 with a diagnosis of angina pectoris.

Apparently, because of this inadequate showing of physical disability, on February 11, 1977 the State re-urged its January 18, 1977 motion to forfeit the $40,000 bond.

A deputy sheriff then testified that on January 18, 1977, while assigned to the court, he called out for Gordon Novel three times in the courtroom and three times in the hallway, with no response. Thereafter the State introduced in evidence a notice served on Gordon Novel on December 6, 1976 that he would be tried on January 18, 1977. The return noted that the house, which was the address on the bond furnished by Novel, was being repaired, but Novel was still getting mail at that address. The notice was left in the door. Although not referred to at the time, the record also contains a notice served on Peerless of Novel’s trial date. The State also introduced the bond into evidence and again moved that it be forfeited.

[952]*952In ruling on the motion the trial judge stated that on January 18 when the matter was called for trial and Novel was not present, the State moved to forfeit the bond. The motion was denied on January 18, according to the trial judge, because the court had good reason to believe that the defendant was hospitalized. An alias capias was issued for Novel’s arrest at that time because he had moved without notifying the court and because he was out of state.

Since that time, the trial judge declared, he had discovered that Novel was no longer in the city of New Orleans and his wife and family had moved out of the city. The trial judge said that the sheriff of Paulding County, Georgia, advised that an attempt was made to execute the alias capias on January 20, 1977 but that Novel had checked out of the hospital minutes before he arrived. Under these circumstances, the trial judge considered Novel to be a fugitive from justice and therefore ordered the bond forfeited. A formal judgment of bond forfeiture was signed and filed at that time. A new alias capias was issued for Novel’s arrest with bond of $250,000.

Notice of the forfeiture was mailed on February 16, 1977 to the surety on the bond at 116 John St., New York City. A copy of the notice was also mailed to the agent of the surety who posted the bond at the New Orleans address appearing on the face of the bond. An affidavit of the Clerk of Court was filed in the record on February 17, 1977 affirming that the notice of bond forfeiture had been sent by certified mail to the surety and its agent on February 16, 1977. No timely effort was made by Peerless to obtain review of this judgment.

July 13, 1977 was the next time counsel for Peerless appeared in open court. A motion was then filed to suspend the time period during which the bond forfeiture could be set aside. Therein it was alleged that Novel had voluntarily surrendered himself to the State of Georgia on February 22, 1977 in response to the arrest warrant issued by the Louisiana court. Novel was released on bond in Georgia, according to these allegations, and his extradition was on appeal to the Georgia Supreme Court. For these reasons, the motion continued, Novel could not be forcibly returned to Louisiana without violating the laws of Georgia, and the time to rescind the bond forfeiture in the instant case should be extended until five and one-half months after final disposition of the Georgia case.

A motion to rescind the bond forfeiture was also filed on the same day. According to that motion, it was error to hold a hearing on February 11, 1977 and order the bond forfeited without giving Novel an opportunity to present himself for trial. It was also alleged that the oral and documentary evidence adduced at that hearing was insufficient.

These motions were denied without a hearing for the stated reason that the defendant Novel was a fugitive from the State and not present in court. Counsel for Peerless objected to the ruling and applied to this Court for certiorari.

In its application to this Court Peerless alleged that its motion to rescind filed on July 13, 1977, five months and two days after the bond forfeiture, was timely (within the six months from forfeiture allowed by statute to apply to have the forfeiture set aside or rescinded).

Peerless’ application also complained of the trial judge’s refusal to hold an eviden-tiary hearing on its motions for an extension of time and to rescind the bond forfeiture. Because of this, the application asserts, Peerless was prevented from adducing proof of Novel’s hospitalization on January 18 or the fact that he was in custody in Georgia, which would have established the “non-forfeiture situations” referred to in Section 87 of Title 15 of the Revised Statutes. A motion to forfeit alone, Peerless asserted, was not sufficient; Sections 85 and 87 of Title 15 of the Revised Statutes permitted “adequate proof [to be] furnished within six months of forfeiture” in order to rescind the forfeiture. After considering the application, this Court ordered an evidentiary hearing contradictorily with the district attorney on the motions to extend time and to rescind the bond forfei[953]*953ture. A hearing in the trial court was accordingly set for August 8, 1977 on Peerless’ motion and thereafter continued to August 12.

Although Novel was not in attendance, the hearing was held as scheduled on August 12. At that time, over the State’s objection, Peerless offered to introduce a number of documents. Then over objection by Peerless the State offered to introduce its documentary evidence. All objections were overruled and the documents were admitted. Peerless’ offerings consisted of an affidavit by Dr. Jerry L.

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Cite This Page — Counsel Stack

Bluebook (online)
356 So. 2d 950, 1978 La. LEXIS 7270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-novel-la-1978.