{ "id": 8527463, "name": "STATE OF NORTH CAROLINA v. JAMES HORNE, AKA JIM HORNE", "name_abbreviation": "State v. Horne", "decision_date": "1984-05-15", "docket_number": "No. 8313SC1060", "first_page": "480", "last_page": "484", "citations": [ { "type": "official", "cite": "68 N.C. App. 480" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "83 U.S. 366", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 411266 ], "weight": 2, "year": 1873, "pin_cites": [ { "page": "371-72" }, { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/us/83/0366-01" ] } ], "analysis": { "cardinality": 420, "char_count": 7486, "ocr_confidence": 0.812, "pagerank": { "raw": 1.5366676434809482e-07, "percentile": 0.6720951684827957 }, "sha256": "41d1f44ca8370a8fbb8df9f7e910398168177bf0ee59d4e3bff5beaacc9e4460", "simhash": "1:966c7229ab03ea6a", "word_count": 1258 }, "last_updated": "2023-07-14T17:24:21.303361+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN and Judge EAGLES concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES HORNE, AKA JIM HORNE" ], "opinions": [ { "text": "BRASWELL, Judge.\nThe defendant \u201cskipped\u201d his bail bond. The State wants the money for the benefit of the county school fund. The court entered a judgment of forfeiture on 14 February 1983. On 4 May 1983 the sureties, James D. Couey and wife, Martha B. Couey, moved to remit the judgment. The court denied the motion for remission on 23 May 1983. The sureties appeal.\nThe defendant failed to appear for his court date of 4 October 1982. A surety appearance bond for $100,000 for the offenses of conspiracy to traffic and trafficking in marijuana had been executed earlier by the Coueys and secured by a deed of trust on certain lands.\nThe grounds for relief alleged in the motion to remit are: (1) the sureties\u2019 attorney was on vacation when the judgment of forfeiture was entered on 14 February 1983, and the attorney \u201cnever received notice that a judgment would be prayed for and entered on February 14, 1983,\u201d [there is no record evidence to support this ground and was abandoned by the surety-appellants on appeal] and (2) because \u201cit was impossible for the Defendant to be in the Brunswick County Superior Court on October 4, 1982,\u201d they \u201chave a meritorious defense.\u201d\nNo exceptions were taken to any of the trial judge\u2019s fourteen findings of fact. In summary, those binding facts show that the defendant was not incarcerated in the State of Florida on 4 October 1982, although he had entered pleas of guilty and was awaiting sentencing. His Florida attorney had instructed him not to leave until he was sentenced. The guilty pleas were entered on 20 September 1982, but Horne was not sentenced, or taken into custody in Florida, until 2 November 1982. James Couey was aware of the Brunswick County court date of 4 October 1982 before 4 October. The defendant had telephoned Attorney William D. Ezzell on or about 26 or 27 October 1982, stating that \u201che was not coming back to the State of North Carolina.\u201d\nJames Couey did not go to Florida, nor did he arrange to send anyone to Florida to obtain the defendant\u2019s presence for court even though Couey knew of the court date, knew where the defendant was, and knew the identity of his Florida attorney. Although Couey is not in the business of making bonds, he had made two prior bonds and fully understood he was putting up property as security for the bond. Couey also had actual knowledge and notice of his responsibilities as bail bondsman.\nAs to surety Martha B. Couey, the court found and concluded that she was served with the notice of order of forfeiture, that there was no evidence that she did not understand the nature and consequences of executing a legal document, that there is a presumption that she fully understood the nature and consequences of signing together, with her husband, and that the forfeiture was properly entered on 14 February 1983. No exceptions were taken to these findings and conclusions.\nThe surety-appellants make two exceptions. The first challenges the conclusion of law, \u201c[t]hat there exists no meritorious defense for the remission of any of this judgment,\u201d and the second exception challenges the adjudicatory part of the order that holds \u201cremission is denied.\u201d The questions presented for review allege that the trial judge applied \u201cthe wrong legal standard to determine whether the judgment of forfeiture should be remitted,\u201d and that the judge abused his discretion by refusing to remit any part of the bail bond. We disagree and affirm.\nThe statutory law governing remission of forfeited bail bonds is contained in G.S. 15A-544(e) and (h). Subsection (e) provides that \u201cthe court may direct that the judgment be remitted in whole or in part, upon such conditions as the court may impose, if it appears that justice requires the remission of part or all of the judgment.\u201d Subsection (h) provides that \u201c[f]or extraordinary cause shown, the court . . . may, after execution, remit the judgment in whole or in part and order the clerk to refund such amounts as the court considers appropriate.\u201d As there has been no execution on the judgment before us, subsection (h) is inapplicable, and we apply subsection (e) alone.\nSince the statute says \u201cmay\u201d remit, the decision to do so or not is a discretionary one. We review only for an abuse of discretion. In order to exercise judicial discretion in a manner favorable to a surety, the judge must determine in his discretion that justice requires remission. Here, the trial judge exercised his responsibility by conducting the hearing, finding the facts, and making the conclusions of law. The facts as found do not compel the conclusion that \u201cjustice requires\u201d the forfeiture be remitted in whole or in part. The conclusions fail to show any abuse of discretion in the discretion applied by the trial judge to the uncontested facts.\nThe theory of the hearing below, based upon the sureties\u2019 own written motion and the statute, is that justice requires that the trial court recognize their meritorious defense of excusable absence because of the defendant\u2019s inability to attend court. However, the facts conclusively show that the defendant was not incarcerated, and there was no evidence of personal sickness or death. On the contrary, the showing is that justice required the defendant\u2019s presence, rather than his absence. Even though the sureties are lay persons, and not professionals in the bonding business, they knowingly executed a defendant\u2019s bail bond and had the responsibility to produce the defendant for all his required court appearances.\nIt is immaterial in this case that the judge\u2019s order did not include a use of the statutory words \u201cjustice requires.\u201d With the impossibility of attendance allegation unsubstantiated, and with the record devoid of facts showing justice required relief, as a matter of law it would have been an abuse of discretion to have remitted in whole or in part the judgment of forfeiture. Let execution upon the judgment issue by the Clerk of Superior Court upon certification of this opinion to the trial court.\nAs said in Taylor v. Taintor, 83 U.S. 366, 371-72, 21 L.Ed. 287, 290 (1873): \u201c \u2018The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge. (Citation omitted.)\u2019 \u201d\nAffirmed.\nChief Judge VAUGHN and Judge EAGLES concur.", "type": "majority", "author": "BRASWELL, Judge." } ], "attorneys": [ "Attorney General Rufus L. Edmisten by Assistant Attorney General David Roy Blackwell for the State.", "Ward and Smith by David S. Morris and William Joseph Austin, Jr.; Of Counsel Frink, Foy and Gainey by Henry G. Foy for surety-appellants.", "Prevatte, Prevatte & Peterson by James R. Prevatte, Jr. and R. Glen Peterson for appellee, Brunswick County Board of Education." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES HORNE, AKA JIM HORNE\nNo. 8313SC1060\n(Filed 15 May 1984)\nArrest and Bail \u00a7 11.4\u2014 refusal to remit forfeited bail bond\nThe trial court did not abuse its discretion in refusing to remit a portion of a forfeited $100,000 bail bond to the sureties on the bond where the evidence showed that when the defendant failed to appear for trial, he was awaiting sentencing in Florida but was not incarcerated in that state, and that the sureties knew of the date set for defendant\u2019s trial, where defendant was and the identity of his Florida attorney but made no attempt to obtain defendant\u2019s presence for his trial in North Carolina. G.S. 15A-544(e).\nAppeal by defendant-sureties from Hobgood (Robert H.j, Judge. Order entered 23 May 1983 in Superior Court, BRUNSWICK County. Heard in the Court of Appeals 30 April 1984.\nAttorney General Rufus L. Edmisten by Assistant Attorney General David Roy Blackwell for the State.\nWard and Smith by David S. Morris and William Joseph Austin, Jr.; Of Counsel Frink, Foy and Gainey by Henry G. Foy for surety-appellants.\nPrevatte, Prevatte & Peterson by James R. Prevatte, Jr. and R. Glen Peterson for appellee, Brunswick County Board of Education." }, "file_name": "0480-01", "first_page_order": 512, "last_page_order": 516 }