
    WEBER v. UNITED STATES.
    Circuit Court of Appeals, Eighth Circuit.
    April 4, 1929.
    No. 8164.
    J. Q. A. Harrod, of Oklahoma City, Okl., for appellant.
    Roy St. Lewis, U. S. Atty., and Herbert K. Hyde, Asst. U. S. Atty., both of Oklahoma City, Okl.
    Before KENTON, Circuit Judge, and FARIS and SANBORN, District Judges.
   FARIS, District Judge.

This 'is an appeal by Weber to reverse a judgment against him for tbe sum of $1,500, being the full sum of tbe penalty on a bail bond, conditioned for 'the appearance of one Kelly to answer an indictment in a criminal case pending against tbe latter in tbe United States District Court for tbe Western District of Oklahoma.

It appears that a forfeiture was duly taken. The writ of scire facias issued and was served alone on appellant Weber; tbe accused principal and tbe sureties, except Weber, not being found within tbe district. Weber made return to tbe writ; and upon tbe writ, tbe return thereto, tbe allegations wherein were agreed to be true, and upon certain agreed and stipulated faets, herein below quoted, the case was by consent submitted to tbe court sitting as a jury. Tbe court found in favor of tbe United States for tbe full penalty of tbe bond.

The chief defense of appellant is disclosed by the following excerpt from the agreed faets, to wit:

“That the facts of the foregoing cause aire set out in the plaintiff’s scire facias and in tbe defendant’s answer in tbe above cause, and in addition to the facts therein set out, there are additional facts; i. e., that the defendant L. W. Weber has used due diligence to procure tbe appearance of the defendant Thomas F. Kelly; that prior to, and since the disappearance of the defendant Thomas F. Kelly and since bond was forfeited, to wit, October 10th, 1927, the defendant surety, L. W. Weber, has advertised extensively for the whereabouts throughout Nebraska, Iowa, North and South Dakota, Washington, Minnesota, and southwestern portion of Canada, same being territory (formerly) visited by the defendant Thomas F. Kelly; has offered a reward of $250 for his arrest and detention until the said Weber can send after him; that the family of tbe said Thomas F. Kelly, father, wife, and other relations, say that they have not heard from him for a long time prior to the time this bond was forfeited, and that they knew nothing of his whereabouts; that he surreptitiously disappeared; that they are unable to say where he is at this time, or has been since the bond was forfeited.”

Appellant relies largely, if not wholly, upon the statute (section 601, title 18, U. S. C. [18 USCA § 601]), which reads thus:

“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 willful 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.”

The matter is a very simple one, in our opinion, and we think it is clear that appellant has set up no sufficient ground for relief; nor does the agreed statement of facts, on. which it was submitted, disclose any defense whatever. Section 601, title 18, U. S. C. (18 USCA § 601), makes two conditions precedent necessary before it becomes applicable: First, “that there has been no willful default of the party;” and second, “that a trial can, notwithstanding, ho had in the cause.” There are a few cases, remarkable to say, which hold that the word “party,” as used in section 601, supra, refers to him who asks for relief, and who ordinarily, at least, is the surety on the bond. But the great weight of authority is that this word refers to the defendant; that is, the principal in the bond, who, as a condition precedent to affording relief to the surety under the above statute, must not have been guilty of a willful default in failing to appear, at the time he was by his bail bond required to appear. United States v. Smart (C. C. A.) 237 F. 978; United States v. Shelton (D. C.) 6 F.(2d) 897; Fidelity & Deposit Co. of Maryland v. United States (C. C. A.) 293 F. 575. It seems to us that this view, as held in the above eases, so clearly accords with the reason of the thing and the weight of authority that further exposition of the point is unnecessary.

As already seen, section 601, supra, attaches another condition to the power of the District Court, to remit, the whole, or a part of the penalty of the bond. That condition is “that a trial can, notwithstanding, he had in the cause.” We think that, under no conceivable situation, can the surety avail himself of the provisions of section 601, supra, so long as Ms principal, as here, is absent, and evading trial. Here, so far as appears from the formal record before us, the principal absconded and fled to parts unknown. This default was, so far as now appears, wholly willful on the part of the principal. Even his present whereabouts was unknown at the time of the trial below, so far as the record before us discloses, and so a trial cannot bo had in the case, the default notwithstanding.

It follows that, of the two conditions precedent required by section 601, supra, neither is present among the agreed facts. It seems fairly clear that the absence of either precluded the trial court from giving any relief to the surety. The absence of the principal, on the day he was by his bail bond to appear, was not caused (a) by act of God; (b) by act of the obligee; or (c) by act of law. Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287. These conditions, or one of them, outside of the statute, furnish the only defenses of fact open to the surety. He has neither brought himself within the excusing pale of either of the above defenses, nor has he brought himself within the excusing conditions of section 601, supra, above discussed.

Subsequent to the submission of this case in this court, a stipulation was filed by counsel for Weber and counsel for the United States, wherein it is agreed that Kelly, the principal in the hail bond here in controversy, was in January, 1929, by a state court of the state of Nebraska, sentenced to imprisonment in the Nebraska penitentiary for a term of 20 years, for a crime committed by him ponding his enlargement on the bail bond here in controversy, and that he is now incarcerated in the penitentiary upon such sentence.

Obviously this fact was not before the trial court. This appeal must be heard here upon the record which was before the trial court, and on that alone [Dean v. United States (C. C. A.) 30 F.(2d) 523], and this court can consider the stipulation only for the purposes pointed out in the Dean Case, supra.

But, as an act of grace, we consider whether Weber is at all aided by tbe facts stipulated. We think it too' plain for argument that he is not, and hold that the incarceration of the principal in a different jurisdiction for a second and different offense against the laws of that jurisdiction, even whore the principal is prevented from appearing to answer Ms bail by such incarceration, does not exonerate the surety. This view is fortified by the great weight of authority, both in state and federal courts. In fact, the cases seem to be practically unanimous in so holding. State v. Horn, 70 Mo. 466, 35 Am. Rep. 437; United States v. Van Fossen, Fed. Cas. No. 16,607, 1 Dill. 406; Devine v. State, 5 Sneed (Tenn.) 623; Taintor v. Taylor, 36 Conn. 242, 4 Am. Rep. 58; United States v. Marrin (D. C.) 170 F. 476; Mix v. People, 26 Ill. 32; Yarbrough v. Commonwealth, 89 Ky. 151, 12 S. W. 143, 25 Am. St. Rep. 524; Adler v. State, 35 Ark. 517, 37 Am. Rep. 48.

We conclude that the judgment of the trial court was right, and that it ought to be affirmed, which accordingly is ordered.  