Appeal from the Criminal Court of Baltimore; Carter, J.
Brune, C. J., and Henderson, Hammond, Marbury and Sybert, JJ. Sybert, J., delivered the opinion of the Court.
On July 28, 1961, Gus C. Sclafani and James J. Episcopia (also known as Russo), residents of New York City, were arrested while perpetrating an armed robbery of a jewelry store in Baltimore City. Bail, originally set at $100,000 for each defendant,
was reduced to $50,000 for each. Sclafani's wife requested Albert Newman, a surety agent in New York, to arrange bail for both defendants. Newman contacted Matthew Silverman, the president of a New Jersey agency which was a bonding agent for the appellant, Allegheny Mutual Casualty Company. Upon Newman's agreement to hold the appellant company harmless in the event of a default, Silverman caused two bail bonds of Allegheny -- in the amount of $50,000 for each defendant -- to be filed in the Criminal Court of Baltimore through Herman Kimmelman, a Baltimore representative of Silverman's agency. Newman required certain relatives and friends of the defendants to pledge their properties in order to indemnify Allegheny in case of default under the bonds.
The defendants were arraigned and pleaded not guilty on August 15, 1961. At the arraignment both defendants were represented by a Baltimore attorney, who was said to have been retained by Kimmelman. The case was set for trial on Friday, September 15, 1961. On September 14, 1961, both defendants were in Baltimore and attempted to obtain new counsel. Unsuccessful in this endeavor, Episcopia telephoned a New York attorney late that afternoon and asked him to represent both defendants at their trial on the next day. The New York attorney told Episcopia that if the case were postponed until Monday, September 18, 1961, he would arrange to go to Baltimore to represent them. The defendants then telephoned Kimmelman in Baltimore and asked him to try to get a postponement until Monday and he said that he would try. At about 5:30 P.M. on the same day, according to the lower court's written opinion, prospective new or additional counsel (not named) consulted in chambers with the judge who was to preside at the trial on the following day, requesting a postponement. The request, however, was refused. There is nothing in the record to show that this information was conveyed to the defendants, or that they had any knowledge of such a visit by an attorney to the judge's chambers. Early that evening both defendants returned to New York.
When the case was called the following day, Friday, September 15, the defendants failed to appear. The Baltimore attorney
who had represented them at their arraignment stated that he had been told by New York counsel that the defendants were on their way but would be late. The court had the bail called and entered a forfeiture of $50,000 on each bond. The court then requested the appearance of the agent for the surety, Kimmelman, who appeared and told the court that he had received a call from New York (it does not appear from whom) informing him that the defendants would be in court early that afternoon. The appellant company was then removed from the rolls of those eligible to write bail in the Criminal Court of Baltimore. The defendants never appeared on the day set for their trial.
Silverman learned of the forfeiture late Friday afternoon and notified Newman in New York. Silverman went to New York Saturday, September 16, and, he testified, the two defendants agreed to return to Baltimore immediately. He drove them back late Saturday night and, as he put it, they surrendered themselves at the Central Police Station in Baltimore at 4:00 A.M. on Sunday, September 17.
On Monday, September 18, 1961, the defendants were brought into court. When the case was called they told the court that they did not wish to be represented by the Baltimore attorney who had appeared for them at the arraignment, and who was present in court. However, the trial judge refused to permit the attorney to strike his appearance because the trial was about to begin. The defendants requested a postponement, which was denied. During a recess, however, the defendants changed their minds and asked the Baltimore attorney to represent them, and, when the court reconvened, they changed their pleas to guilty. Each defendant was then sentenced to serve 20 years in the Maryland Penitentiary.
On October 16, 1961, the appellant bonding company, the defendants, and the indemnitors on each bond, filed a motion pursuant to Code (1957), Art. 26, Sec. 33(b), infra, to strike out the forfeitures. The ...