SEABOARD SURETY CORPORATION OF AMERICA (a Corporation), Petitioner, v. THE MUNICIPAL COURT OF THE CITY OF LOS ANGELES et al., Respondents, 208 Cal. 596

PRESTON, J. The petition for writ of mandate herein is denied. The application involves solely a construction of .section 1305 of the Penal Code, as amended in 1927 (Stats. 1927, p. 1386, chap. 735). The legislature at that time extended the period from twenty to ninety days within which the court may direct the forfeiture of the undertaking to be discharged, but at the same time added a provision respecting the surety upon the bail bond. After amendment, the language of the

section in this connection was as follows: “But if at any time within ninety days after such entry in the minutes, the defendant and his bail appear and satisfactorily excuse his neglect, and show to the satisfaction of the court that the absence of the defendant was not with the connivance of the bail, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just.” Petitioner asserts that we should ascribe to the word “and,” as it appears before the word “show” in the above quotation, the meaning of “or.” The effect of this construction, if allowed, would be, not to provide that both defendant and bail be without default, but to permit relief where defendant’s absence was wilful so long as the bail was acting in good faith.

In other words, petitioner’s contention is that a surety, if acting in good faith, has ninety days after the failure of a defendant, whether excusable or not, to appear, within which to produce him and be relieved from a forfeiture of the undertaking. We are pointed to such cases as. Washburn v. Lyons, 97 Cal. 314 [32 Pac. 310], People v. Pool, 27 Cal. 573, 581, and Abbey v. Board of Directors, 58 Cal. App. 757, 760 [209 Pac. 709], as illustrating the fact that in construing some statutes the word “and” has been substituted for the word “or” and vice versa.

But a consideration of the terms of this statute does not warrant such a construction of said word. It is our view that the legislature intended not only that a defendant be free from fault, but that the bail be likewise free from intentional interference on his part. It is suggested that if a defendant be free from fault, the surety must of necessity be free also. But this does not necessarily follow for it may be easily supposed that a defendant was acting in ignorance of his duty to appear and the surety on his bond was at the same time acting with design to prevent his appearance.

The construction which we place on this

section is illuminated by the more recent amendment to

section 1306 of the Penal Code, enacted in 1929 (Stats. 1929, p. 1872, chap. 849). This

section provides that under certain specified conditions, a surety may, if acting in good faith, secure a return of the bail money if he produces the defendant within one year after the entry of the judgment of forfeiture and this is followed by a conviction of the defendant of the highest charge embraced in the complaint or information or indictment. This would seem to be the full measure of relief that a surety in any case may have.

It is true that the above provision was added since 1927, but nevertheless, we see no reason to omit a consideration of its provisions in our effort to ascertain the true legislative intent at the time of the amendment here in question. The facts of this ease as shown by the record are as follows: Mamie Jacobs and John Morelli were complained against in the Municipal Court of the City of Los Angeles, presided over by the Honorable Georgia P. Bullock, for the offense of petit theft. On February 14, 1929, after entering pleas of guilty, they applied for probation.

The cause was continued to February 20, 1929, for hearing on the application for probation and sentence; bail in the sum of five hundred dollars was fixed to insure their appearance on said day. Defendants, however, failed and neglected to appear and, no cause being shown for said neglect, the bail was ordered forfeited. On March 13, 1929, defendants were surrendered into court by said Seaboard Surety Company, were sentenced by the court and duly committed to the Los Angeles city jail.

On April 12, 1929, said Seaboard Surety Company moved the court that said forfeiture be set aside and vacated and that the bail be exonerated. The motion was ordered submitted on briefs. The court thereafter, on June 5, 1929, found that the neglect of said defendants to appear was inexcusable, but that it was not with the connivance of the bail and, therefore, solely upon the ground that defendants could not excuse their said neglect to appear in court as ordered, and for no other reason, said court ordered that said motion to set aside the bail forfeiture be denied.

Thereafter said surety filed its petition for writ of mandate herein, which we have been led to deny. Curtis, J., Richards, J., Seawell, J., Waste, C. J., and Langdon, J., concurred.