United States v. Walter

43 App. D.C. 468, 1915 U.S. App. LEXIS 2638

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 19, 1915
• Docket: No. 2770
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

It was ruled in United States v. Von Jenny, 39 App. D. C. 377, that the foundation for the remission of a forfeiture of a recognizance in sec. 1020 of the. Revised Statutes, Comp. Stat. 1913, sec. 1684, which reads as follows: “When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no wilful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced.” It was further ruled that while this statute might be said to be declaratory of the common law, its purpose was “also to fix certain limitations upon the exercise of the discretion committedthat the wilful default mentioned in the first limitation must necessarily be that of the principal cognizor, and that where his default is wilful, there is no room for the exercise of discretion under the statute. In the present case, not only was the default of the principal cognizor wilful, but the affidavit of the assistant district attorney leaves little room for doubt that the default was the result of an understanding between him and his codefendants, one of whom would be the real beneficiary of this forfeiture. There was, therefore, not only no room for the exercise of discretion on the part of the court below, but public justice required the penalty to be enforced.

The order will be reversed and the cause remanded for further proceedings. Reversed.