No. 82-101 

IN THE SUPREL?IE COURT 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: Uistrict Court of the Fourth Judicial District, 

In and for the County of Ninerai, The Honorable 

Douglas Harkin, Judge presiding. 

For Appeilant and Cross-Respondent: 

aexter L. 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, 1983 
Mr. 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. At that 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. State v. Musgrove (1978)r 178 Mont. 162, 528 P.2d 1246. 

A second trial was commenced in January 1979; defendant being 

at liberty. He attended all proceedings through the close of the 

evidence on Friday, January 26, 1979. The District Court had 

scheduled closing arguments for the following Monday, January 29. 

However, on Monday morning the defendant failed to appear. The 

District Court then ordered total forfeiture of the $50,000 bond, 

issued a bench warrant for defendant's arrest, and recessed the 

trial for ten days, until Wednesday, 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 to Texas to commit suicide. While 

in Texas, 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 

to return to Montana. They provided transportation and Musgrove 

was back in Montana 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. 

International Fidelity was still dissatisfied and their appeal is 

again before this Court. 

Two issues are raised by the parties: (1) whether or not the 

District Court 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 "satisfactory excuse" as required by section 46-9-503 (3) , MCA. 

In other words, the State maintains 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 "satisfactory excuse ," rather, 

the issue is the amount of discharge. 

Section 46-9-503(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 in pointing out the obvious prerequisite 

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 : 

"The Defendant's decision to leave Montana was 

the result of his belief that he was being 

railroaded at the trial, he would be convicted 

and he would receive a sentence of 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 in Texas, the Defendant 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 left the State of Montana while 

under great emotional stress resulting from 

his trial and personal problems. 

"The Defendant's mental state at the time he 

left Montana operates as a partial excuse for 

his unauthorized 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 at the time set is ordinarily held to be . . . ground suff icient for the vacation of a forfeiture ." 8 Am.Jr.2d Bail and 

Recognizance S 184 (1980). 

The State places significance on the phrase "partial excuse" 

found in the court's conclusions. In other words, the State 

maintains that although Musgrove's absence was partially excused, 

it does not follow that his absence was satisfactorily excused. 

The State would have us believe that the statute requires a 
complete excuse as opposed to a partial excuse. This distinction 

is not in the statute and we will not read it into the statute. 

Since we hold that the court did have jurisdiction to order a 

discharge, we must now consider whether or not the court erred in 

discharging $45,000, requiring a forfeiture of $5,000, -- or the 

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. "This Court will not 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 or exceeded the bounds of reason. (Citations omitted. ) " 

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 in out-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 that may not be considered. In our first opinion 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. at 759. However, appellant is mistaken 

in claiming that the record lacks evidence to support the court's 

order. 

In making its argument, that there is no evidence to support 

a forfeiture beyond $1,000, appellant makes a faulty assumption. 

This faulty assumption is evident in the following quote from 
the initial brief: "it is 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 authority exceeds . . . $1,000." Appellant 

assumes that an order of forfeiture can only be supported by evidence relating to damage. 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 consider not only evidence relating to damage but also the 

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 

case must be considered in their 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, 

we must 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's bail to 

the District Court with the admonition that "[alny judgment 

reached shall not consider as factors either a penalty to the 

defendant or the insurance company or revenue to the state." 

State v. Musgrove v. International Fidelity Insurance Company 

(1980) , - Mont . - , 610 P.2d 710, 713, 37 St.Rep. 755. 

That admonition to the District Court 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 return him 

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, should not 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 argument before 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 

District Court, 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 terms may logically 

include the costs incurred by the county in returning the 

defendant to the court of justice and no more. This position 

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 the whole 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. 

I know of no statute or legal principle in Montana 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 a babysitter for the court. 

I would reverse and 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 Daniel J. Shea, dissenting: 

In the first case involving the bonding company and the 

State, we held that whatever the District Court orders, it 

cannot be done as a source of revenue or 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, or what 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, constitutes an abuse of discretion. 

The State had its opportunity 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.