DE OROZCO et al. v. UNITED STATES, 237 F. 1008

GRUBB, District Judge (after stating the facts as above). The plaintiff in error assail the validity of- the judgment against them upon a number of grounds, which we will consider seriatim. 1. It is contended that the right to recover on the bond abated by the death of the principal before final judgment on the bond, and before he could have been indicted or tried for the felony charged in the complaint.

Section 1014, Revised Statutes, provides that, for any crime or offense against the United States, the offender may by certain named state or United States officers, and “agreeably to the usual mode of process against offenders,in such state, be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offence.”

Section 500 of the Texas Code of Criminal Procedure .enumerates the causes which will exonerate a defendant and his sureties from liability upon a forfeiture taken. Death before—but not after—the forfeiture is taken is specified as one of them. The Texas procedure governs the federal courts in such matters pursuant to

section 1014, Revised Statutes. United States v. Sauer (D. C.) 73 Fed. 671; United States v. Dunbar, 83 Fed. 151, 27 C. C. A. 488. In the case of United States v. Van Fossen, 28 Fed. Cas. 357, No. 16,607, the Circuit Court for the District of Kansas held, through Justice Miller and Circuit Judge Dillon, as a matter of general procedure, that it was a settled rule that death of the principal after forfeiture, but before final judgment on the bond, did not relieve against the forfeiture. 2.

It is contended that the bond is void because-not conditioned according to law.' Its condition was that the principal “shall appear before the said United States commissioner at his office in El Paso on July 1, 1915, and there remain from day to day and from time to time to- answer said charge.”

Article 293, Texas Code of Criminal Procedure provides that the defendant “shall in the meanwhile be detained in the custody of the sheriff or other duly authorized officer, unless he give bail to be present from day to day before the magistrate until the examination is concluded.” The difference is one rather of words than legal effect. W~e think the condition was substantially as required by law. Certainly it is not the basis of such a plain error as this court would notice, when not made the ground of objection in the court below. 3.

It is contended the continuance of the case from July 1st until July 12th, was unauthorized, because (1) made verbally by the commissioner, and not entered on his docket, and (2) made against the objection of the defendant and without the support of an affidavit as to the existence and contents of absent evidence, as required by

article 205 of the Texas Code of Criminal Procedure.

Article 293 of the same Code authorized the committing magistrate to- postpone for a reasonable time the examination. Continuances are discretionary, and the failure, to require the affidavit as to the nature of the .absent testimony could not authorize the defendant to decline to appear at the postponed hearing or release his bond, if he did so. The failure to enter the continuance on the docket could have no such effect. If the defendant was notified of the time' and place at which he was expected to appear, it was his duty to do so, despite such irregularities.

Plis failure to appear would work a forfeiture of his bond. 4. It is contended that the .sworn complaint, on which the warrant issued, failed to charge the defendant with an offense under the laws of the United States.

The complaint charges Orozco and others with having conspired “to begin, and set on foot and provide and prepare the means for a military expedition to be carried on from the territory and jurisdiction of the United States against the territory and dominions of the United States of Mexico, with whom the United States of America are at peace,” and charges the purchase and shipment to and storage at a warehouse at Fifth and Santa Fé streets of military supplies as the overt act. The contention is that the preparation of such .a military expedition was not a violation of

section 13 of the Penal Code, because the government of Carranza had not been recognized at that time as the legitimate government of Mexico. We think the decision of the Supreme Court in the case of The Three Friends, 166 U. S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897, shows that neither prior recognition of legitimacy or of belligerency of the government or faction against which the expedition is directed, by this government, is necessary to make applicable the provisions of

section 13 to such an expedition. It is also contended that the overt act is not shown by' the complaint to have been done within the jurisdiction of the District Court for the Western District of Texas. The complaint fails to allege the name of the city where the supplies were shipped and stored.' The jurisdiction of the court may be determined by the place of the formation of the conspiracy, as well as that of the commission of the overt act. Th“e complaint alleges the formation of the conspiracy to have been at El Paso, in the Western district of Texas. This was sufficient. Dealy v. United States, 152 U.

S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545; Hyde v. Shine, 199 U. S. 62, 25 Sup. Ct. 760, 50 L. Ed. 90. We do not think that the complaint showed on its face that no .offense of which the District Court of the United States for the Western District of Texas had jurisdiction had been committed, as claimed. 5. The fact that the amount of the bond was fixed and the bond executed and approved on Sunday does not make it invalid.

In 37 Cyc. 581, the text reads: “It is well settled that a bail bond or recognizance entered into on Sunday, for the purpose of releasing a person held in custody, is valid, the entering into such bond being considered as

an act of necessity and charity and not judicial business.” This is the holding in Texas, whose decisions this court would follow, pursuant to the direction of

section 1014, Revised Statutes. Ex parte Millsap, 39 Tex. Cr. R. 93, 45 S. W. 20; Lindsay v. State, 39 Tex. Cr. R. 468, 46 S. W. 1045. The foregoing are the objections offered to the judgment on the bond by all the plaintiffs in error, none of which we think should avail to reverse the judgment. The judgment against the plaintiff in error, Refugia E. De Orozco, is in a different attitude. She did not execute the bond, either as principal or surety. Nor was she the legal representative of her deceased husband, who was the principal on the bond.

She was therefore under no liability to the plaintiff for the breach of the bond, and no judgment could have rendered against her individually, based upon its breach. The judgment against Refugia F. De Orozco will be reversed, and the^ cause as to her remanded, with directions that the suit as to her be dismissed. The judgment as to the other plaintiffs in error is affirmed.