Appeals Court (January 11, 2011)

G.L. c. 276, § 70, applies equally to both sureties and principals who post their own bail.

Regardless of who posts bail, forfeiture is not appropriate when a defendant is unable to appear in court, due to the fact that they are being held in government custody.

While released on bail and during a jury trial, the defendant was arrested and detained in custody. When the defendant failed to appear in court for trial, the judge entered a default warrant and ordered his bail forfeited. The defendant appealed from the judge's order forfeiting his bail arguing that under G.L. c. 276, § 70, he should not be held liable for the default.

G.L. c. 276, § 70:
"If, by the act of God, of the government of the United States, of any state or by sentence of law, bail are unable without their fault to surrender their principal, they shall, upon motion before final judgment on scire facias, be exonerated and discharged by the court, with or without costs as the court deems equitable."

The Court reasoned that the word "bail" in § 70, not only applies to individuals who post bail, but also governs defaults on recognizance as well. In addition, after construing the language of the statute and looking at G.L. c. 276 as a whole, the Court concluded that G.L. c. 276, § 70, applies to both sureties and principals who post their own bail. Therefore, the Court held that regardless of who posts bail, forfeiture is not appropriate when defendants are unable to appear in court because they are being held in custody. "Our holding does not preclude revocation of bail, which may be appropriate in some cases. See G.L. c. 276, §58."

In this case, immediately upon learning the defendant had been arrested, the attorney notified the trial judge of the issue and took action to have the defendant transported to the courthouse as quickly as possible. There was no indication that the defendant was attempting to secure an advantage at trial by being arrested on new charges. Based on those facts, the Court found that forfeiture of bail by the trial judge was inappropriate as the defendant was unable to appear for trial because he was in the Commonwealth's custody.