Summary
In People v. MacGregor (147 App. Div. 488, 491) involving suit upon a bail bond in an instance where the defendant was convicted by the jury, the bail continued, and he was ordered to appear for sentence and judgment at a date in the future, but he failed to do so, the court held "that the finding of the verdict did not affect the condition of the undertaking" and the sureties were not discharged from liability upon the finding of a verdict by the jury, but their obligation continued through rendition of sentence and judgment.
Summary of this case from People v. HenryOpinion
November 15, 1911.
A.T. Blessing, for the appellant.
Miles R. Frisbie, for the respondents.
The conclusion of the Special Term, as stated in the decision, was: "That the court had no authority to release the defendant, Charles N. Vandenberge, upon the original bond; that the same could not, as a matter of law, be continued, so as to bind the sureties, and such a release thereby relieved the sureties."
The theory of the court seems to have been that, notwithstanding one of the conditions of the undertaking was that the defendant "shall at all times render himself amenable to the orders and process of the court, and, if convicted, shall appear for judgment and render himself in execution thereof," it had no force or effect after the verdict of conviction, because section 555 of the Code of Criminal Procedure declares that "After the conviction of a crime not punishable with death, a defendant who has appealed, and when there is a stay of proceedings, but not otherwise, may be admitted to bail: 1. As a matter of right, when the appeal is from a judgment imposing a fine only; 2. As a matter of discretion, in all other cases."
The question upon this appeal, therefore, is whether the word "conviction," in section 555, was intended to denote the sentence or judgment of the court rendered upon a verdict; and not the finding of a verdict by the jury. In People v. Fabian ( 192 N.Y. 449), WILLARD BARTLETT, J., after discussing the signification of the words "convicted" and "conviction," said that "In the general statute which regulates the administration of justice in the criminal courts of this State, we find the word conviction used in both senses. Instances in which it imports a judgment occur in the Code of Criminal Procedure, in sections 442, 449, 519, 527, and 528, in each of which will be found the phrase `judgment of conviction.' This use of the term, with varying meanings, even in the same statute, and extending right down to the immediate present, certainly demonstrates that there is no fixed signification which the courts are bound to adopt."
We think it is apparent, from the language and the purpose of section 555, that it was not intended thereby to limit or affect any of the terms or conditions of the undertaking of bail which may be taken upon an indictment, and that it was designed to apply only to a conviction which is evidenced by sentence and judgment. This is apparent from the facts that it presupposes a judgment, and by its terms is made to apply only to a case where the defendant has appealed from the judgment of conviction and a stay of proceedings has been granted by a certificate that there is reasonable doubt whether the judgment should stand. It was held in People ex rel. Hummel v. Reardon ( 186 N.Y. 164) that this section only relates to admission to bail upon an appeal from a judgment, where a stay of proceedings has been secured as provided in section 527.
It is also apparent, from the provisions of section 556, which is entitled "Nature of bail after conviction and upon appeal," and which alone provide for the nature of the bail to be taken under section 555. This section provides that "After conviction and upon an appeal, the defendant may be admitted to bail as follows: 1. If the appeal be from a judgment imposing a fine only, on the undertaking of bail, that he will pay the same, or such part of it as the appellate court may direct, * * *; 2. If judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or if the certificate of reasonable doubt be vacated as aforesaid."
If such is the correct application of section 555, it is clear that the finding of the verdict did not affect the condition of the undertaking, and that the interlocutory judgment must be reversed, with costs and disbursements, and with leave to the defendants to withdraw their demurrer and answer within twenty days on payment of costs in this court and in the court below.
All concurred.
Interlocutory and final judgments reversed, with costs, with leave to defendants to withdraw demurrer and answer within twenty days on payment of costs in this court and at Trial Term.