No. 82-101 INTHE SUPREL?IECOURT OF THE STATE OF MONTANA 1983

STATE OF MONTANA, Plaintiff and Cross-Appellant, VS

# . TIIURl4AN J. MUSGROVE

### , Defenaant

### , VS

# . INTERNATIONAL FIDELITY INSURANCE COMPANY, Appellant and Cross-Respondent.

Appeal fron: UistrictCourt of the Fourth Judicial District, In and for the County of Ninerai, The Honorable Douglas Harkin, Judge presiding.

For Appeilant and Cross-Respondent: aexterL. Delaney; Mulroney, Delaney, Dalby and Mudd, Missoula, Montana

E'or Plalntlff and Cross-Appellant: Hon. Mike Greely, Attorney General, Helella, Xontana 

### M. Shaun Donovan, County Attorney, Superior, ?~Iontana

Submitted: January 12, 1983 Decided: February 24, 1983Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This 

### case involves an order by the District Court, of the Fourth Judicial District, County of Mineral

### , requiring International Fidelity 

### to forfeit$5,000 of a $50,000 bail bond. Musgrove was convicted of mitigated deliberate homicide on February 7, 1977. He appealed to this Court. Atthat time the District Court required the defendant 

### to secure an additional $50,000 bail. International Fidelity provided the additional bond. This Court reversed the conviction and ordered a new trial. Statev. Musgrove (1978)r 178Mont. 162, 528 P.2d 1246. A second trial

### was commenced inJanuary 1979; defendant being atliberty. He attended allproceedings through the 

### close of the evidence on Friday, January 26, 1979. The District Court had scheduled closing arguments for the followingMonday, January 29. However, on Monday morning the defendant failed to appear. The DistrictCourt then ordered total forfeitureof the $50,000 bond, issued a bench warrant for defendant's 

### arrest, and recessed the trial for ten days, untilWednesday, February 7, 1979. Defendant failed to appear because he was in Texas. According to his testimony, he was suffering from emotional breakdown and wanted 

### to return toTexas to 

### commit suicide. While inTexas, he admitted himself to Villa Rosa Hospital and shortly thereafter 

### was in contact with a representative of International Fidelity. International Fidelity 

### was able to persuade Musgrove toreturn to Montana. They provided transportation and Musgrove

was back inMontana before the expiration of the ten-day recess. Due to Musgrove's absence, the county incurred expenses in the amount of $1,000. On February 6, final arguments were heard and the jury returned a verdict of guilty. Musgrove was sentenced to twenty years imprisonment on February 21, 1979. On that 

### same day a bail discharge hearing 

### was held. The District Court ordered that the forfeiture of the $50,000 bond be discharged in the amount of$25,000. International Fidelity appealed to this Court challenging the amount of forfeiture. This Court remanded because 

### "[olur review of the record leaves no doubt that the $25,000 bond forfeiture was imposed 

### as a penalty." State v. Musgrove (1980), Mont

# . -I 

### - 610 P.2d 710, 713, 37 St.Rep. 755, 759. Another bail discharge hearing 

### was held on December 1, 1981, and judgment 

### was entered on January 11, 1982. This time the District Court discharged all but $5,000. InternationalFidelity

### was stilldissatisfied and their appeal is againbefore thisCourt. Two issues are raised by the parties: (1)whether

### or not the DistrictCourt had jurisdiction 

### to discharge any part of the bond forfeiture; and, (2) if the court did have jurisdiction, whether the ordered forfeiture of $5,000 

### was error? The State argues that the District Court did not have jurisdiction 

### to discharge any of the forfeited bond without a finding of "satisfactoryexcuse" as required by section46-9-503 (3)

## ,MCA. Inotherwords, the Statemaintains that "satisfactory excuse" 

### is

a necessary prerequisite 

### to discharge of any part of the forfeiture. The State 

### cites several non-Montana 

### cases which hold that voluntary absence from a jurisdiction is not "satisfactory excuse;" 

### also, "Musgrove's failure to appear on the basis of psychological problems is not credible." In connection with the above jurisdictional argument, the State maintains that this Court's prior opinion did not alter the necessity for finding "satisfactory excuse

# ." International Fidelity argues in its reply brief that the State has missed the crucial issue. The question is not whether there was "satisfactoryexcuse

### ,"rather, the issue is the amount of discharge. Section46-9-503(3), MCA, states: "If at any 

### time within 30 days af

### ter the forfeiture the defendant or his bail appear and satisfactorily excuse his negligence 

### or failure 

### to comply with the conditions of the bail, the court, in its discretion,may direct the forfeiture of the bail to be discharged upon such 

### terms as may be just."The State

### is correct inpointing out the obviousprerequisite finding of "satisfactory excuse" before any discharge may be ordered. However, we do not agree that the District Court 

### was without jurisdiction 

### to order discharge "upon such 

### terms as may be just." Concerning the reasons Musgrove left Montana, the Court found: "TheDefendant's decision

### to leaveMontana 

### was the result of his belief that he 

### was being railroaded atthe trial, he would be convicted and he would receive a sentenceof twenty (20) years imprisonment.

"The Defendant claimed that at the time he left Montana he suffered a 'total emotional breakdown' and didn't think he knew what he 

### was doing.

"While inTexas, theDefendant was interviewed by a San Antonio Psychiatrist who diagnosed the Defendant as suffering from psychotic depression

## -- suicide. The Court also made the following conclusions of 

### law: "The Defendant leftthe Stateof Montana while under great emotional stress resulting from histrial and personal problems.

"The Defendant's mental 

### state at the time he leftMontana operates as a partialexcuse for hisunauthorized absence

# ." (~mphasis-added.) Although the above findings and conclusions 

### are not statutorily phrased

## , we hold that the Court found "satisfactory excuse." "Sickness

# ..

# . which makes the principal unable 

### to appear atthe time set is ordinarilyheld tobe

# ..

# .ground sufficient for the vacation of a forfeiture

# ." 8 Am.Jr.2d Bail and Recognizance S 184 (1980). The Stateplaces significance on the phrase "partial excuse" found in the court's conclusions. In other words, the State maintains thatalthoughMusgrove's absence

### was partiallyexcused, it does not follow that his absence 

### was satisfactorilyexcused. The State would have us believe that the statute requires acomplete excuse as opposed to a partial excuse. Thisdistinction is not in the statute and 

### we willnot read it into the statute. Since

### we hold thatthe courtdid have jurisdiction to ordera discharge, 

### we must now consider whether 

### or not the courterred in discharging $45,000, requiring 

### a forfeitureof $5,000, 

## -- orthe issue may be stated in statutory terms 

## -- did the court "in its discretion 

# . 

# . 

# . direct the forfeiture of the bail to be discharged upon such 

### terms as may be just?" Initially, we note that the statute explicitly directs the court to use 

### its "discretion [to discharge] upon such terms 

### as may be just." Thus, the general rule concerning scope of review 

### is applicable. "ThisCourt willnot disturb the decision of the trial court absent a clear abuse of discretion. (Citation omitted.) The test for abuse of discretion 

### is whether the trial court acted arbitrarily without the employment of conscious judgment orexceeded the bounds of reason. (Citationsomitted.)

### " Krum v. Krum (1980)

## , - .- Mont

# . -- -- I - 

## ,614 P.2d 525, 527, 37 St.Rep. 1291, 1295. The focus of appellant's argument 

### is that since the county incurred only $1,000 inout-of-pocket expenses due 

### to Musgrovels absence, and since there is no other evidence in the record showing damage, any forfeiture above $1,000 must be regarded as either a penalty or revenue. Appellant is correct in pointing out factors thatmay not be considered. In our firstopinion in this dispute 

### we directed the District Court 

### to reconsider the amount of discharge, and any judgment 

### was not to "consider 

### as factors either a penalty to the defendant or the insurance company

### or revenue to the state

# ." Musgrove

## ,-- -- Mont. at - 

## ,610 P.2d at 713, 37 St.Rep. at759. However, appellant is mistaken inclaiming thatthe record lacks evidence to support the court's order. Inmaking its argument, thatthere is no evidence to support


### a forfeiture beyond $1,000, appellantmakes a faulty assumption. This faulty assumption 

### is evident in the following quote fromthe initialbrief: "itis respectfully submitted that the

# ... judgment of forfeiture

# .

# .. should be vacated because there was

no evidence before the Court to demonstrate that the measure of damage to the public authorityexceeds

# . .. $1,000." Appellant

assumes that an order of forfeiture canonlybe supported by evidence relating todamage. This is not so. The statute directs the court to order discharge "upon such 

### terms as may be just." In making this determination the court should considernot onlyevidence relating to damage but alsothe other factors and circumstances peculiar 

### to each case. As one court stated: 

### "[n]o clear rule can be set down which will guide the trial court in every case since the facts and circumstances of each individual casemust be considered intheir totality. No one factor will be determinative in all cases." Owens 

### v. People (1977)r 194 Colo. 389, 572 P.2d 837, 838. Here, the court's findings of fact and conclusions of law adequately consider all of the pertinent factors. Accordingly,



### wemust affirm.



### We concur:

Chief ~usti,d \

Justices

### Mr. Justice John

### C. Sheehy,dissenting:

When this cause was before us in 1979, we remanded the problem of discharging the forfeiture of defendant'sbail to the District Court with the admonition that "[alny judgment reached shall not consideras 

### factors either apenalty to the defendant or the insurance company or revenue to the state." Statev. Musgrove v. International Fidelity Insurance Company

(1980)

## , -Mont

# . - 

## , 610 P.2d 710, 713, 37 St.Rep. 755. That admonition to the DistrictCourt became the law of the case. Nevertheless,on remand,the District Court found: "The bond forfeiture of Fifty Thousand Dollars ($50,000.00) is excused except for the sum of Five Thousand Dollars ($5,000.00). Such sum is negligible, if any, revenue to the State, in view of the overall expense resulting from the Defendant's departure, and does not operate as a pena.lty to International after balancing their negligent supervision of the Defendant against their diligent and successful efforts to returnhim to Montana in time for completion of the trial." When the case was before us in 1979, and when it comes to us again here, it appears that the only costs that have been reported to the District Court in connection with the return of the defendant for trial is the sum of $1,000. The d.ifference,therefore,between $1,000 and $5,000 is $4,000 of revenue, which the District Court terms "negligible". It is also apparent from the conclusion of the District Court that it is imposing a penalty against the bail bond insurer for their "negligent supervision of the Defendant." There is no power or authority in the District Court,particularly under the law of the case which has been established here for either revenue or penalty assessed for negligence. The amount of forfeiture, therefore, shouldnot exceed the sum of $1,000.

### The county attorney argued in the first case that Mineral County had been put to a good deal of expense in the three trials which ha.ve occurred with respect to this defendant. On oral argumentbefore us in this last case, the county attorney continues to insist that it has cost the county approximately $22,000 to try the defendant and it is

on this ground that the county attorney, and apparently the DistrictCourt,are striving to make some recoupment from the bail bond. That position ignores the position of the forfeiture statute, which provides as follows: "46-9-503. Cond-itions not performed--forfeiture



# . .. "(3) If at any time within 30 days after the forfeiture the defendant or his bail appear and satisfactorily excuse his negligence or failure to comply with the conditions of the bail, the court, in its discretion, may direct the forfeiture of the bail to be discharged upon such terms as may be just." We have held, and it is now the law of the case that such "terms as may be just" cannot be composed of either a penalty, or of revenue to the State. The termsmay logically include the costs incurred by 

### the county in returning the defendant to the court of justiceand nomore. Thisposition is consonant with the remainder of the statute where the defendant or his bail has shown circumstances which "satisfactorily excuse his negligence or failure to comply with the conditions of the bail." If the defendant does not satisfactorily excuse his negligence or failure to comply, it is the duty of the District Court to forfeit thewhole bond, without regard to any partial discharge of the surety. But when the court finds a satisfactory excuse, as It must have here in order to reduce the forfeiture, then the District Court must apply, in the law which we have set forth, the

### rule that it will not exact a penalty or revenue in determining the amount of the forfeiture. Iknowof no statute or legalprinciple inMontana under which a bail bondsman is under duty to the state to "supervise" the defendant for which it posts bail, and for a breach of which it might become liable to the State for "negligent supervision." It is far stretch of law for the District Court to require,or this Court to tolerate, that a bail bondsman becomes ababysitter for the court. I

### would reverseand remand this case,since satisfactory

excuse has been found by 

### the District Court, with instructions to discharge the forfeiture of bail except for the sum of $1,000 to be paid to the county treasurer of Mineral County.

; 

### Justice 

# u

### Mr. Justice DanielJ. Shea,dissenting:

In the first case involving the bonding company and the State, we held that whatever the District Court orders, it cannotbe done as a source of revenueor as a penalty. State

v. Musgrove (1980), Mont. 

### , 610 P.2d 710, 713, 37 St.Rep. 755. The hearing after our remand produced no - 

### new evidence as to what costs the State incurred, orwhat factors should be considered in determining the amount. Here the trial court ordered the bonding company to pay $5,000, without ever stating how or why this figure was chosen. It clearly could have been one picked out of the air. This, in my judgment, constitutesan abuse of discretion. The Statehad itsopportunity to present evidence,

### -- or to present factors 

### -- to the trial court 

### - in considering the amount which should 

### - be forfeited. It did neither. 

### I would, therefore, order that the State must be confined to its out of pocket expenses in this case--$1,000.