United States v. Santos

27 F. Cas. 954, 5 Blatchf. 104, 1862 U.S. App. LEXIS 578

Opinion

NELSON, Circuit Justice.

The 6th seetio~ of the act of February 28, 1839 (5 Stat. 322), provides, that in case of the forfeiture of a recognizance in a criminal case, the court shall have authority, in its discretion, to remit the whole or a part of the penalty, whenever it shall appear that there has been no wilful default of the parties, and that a trial can, notwithstanding, be had in the case, and that public justice does nOt otherwise require the same penalty to be exacted. This case is rather stronger In favor of the applieatióii than those contemplated in the statute. Here the trial has been had, and the prisoner has been acquitted. The condition of the recognizance has been performed in fact, though not in contemplation of law, for the defendant has stood the trial. The case being a misdemean&, It was competent to proceed with the trial in his absence. Although it must be assumed that the default was wilful, as it respects the prisoner, for aught that appears the bail is innocent, and he is the person most materially interested In the success of the motion. Under the actual circumstances of the case, I think that tile breaeh~ of the condition of the recognizance is technical, and that it would be unreasonable to impose it, I shall, therefore, direct the default and estreat to be set aside. The bail must pay to the district attorney the costs of any suit that has been commenced.