State v. Hart , 198 Neb. 164 ( 1977 )

252 N.W.2d 139 (1977) 198 Neb. 164

STATE of Nebraska, Appellee,
v.
Neil HART, Appellant.

No. 40969.

Supreme Court of Nebraska.

March 30, 1977.

Leonard P. Vyhnalek, of Beatty, Morgan & Vyhnalek, North Platte, for appellant.

Milton R. Larson, County Atty., Marvin L. Holscher, Deputy County Atty., North Platte, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

BOSLAUGH, Justice.

An information charging the defendant with burglary was filed in the District Court on April 23, 1975. He was arraigned on July 21, 1975, pleaded not guilty, and trial was set for August 7, 1975. The defendant's appearance bond in the amount of $3,000 was continued.

On August 7, 1975, the trial was continued to October 9, 1975, upon a showing that the defendant was hospitalized with a severe virus infection. Later, the trial was continued to November 10, 1975, upon a showing that the defendant was hospitalized at Brownsville, Texas, with an apparent heart attack.

On February 11, 1976, the State moved for an order requiring the defendant to appear in court so that a trial date might be set. On March 11, 1976, the defendant moved for a continuance alleging that he had suffered a heart attack in Montana on February 17, 1976, and should not be exposed to a strain of any kind for at least 8 months. On March 16, 1976, the trial court ordered the defendant to appear in court on March 29, 1976. The defendant failed to appear on March 29. His bond was forfeited on the motion of the State and a bench warrant was issued.

On April 23, 1976, the State moved for judgment on the bond, and the hearing was set for May 3. On May 3 the hearing was continued to May 10 and Dr. John R. Burg of Billings, Montana, was appointed to examine the defendant. The hearing was again continued on May 10 and May 17. On May 24 the court refused a further continuance and entered judgment on the bond. The defendant has appealed and contends the judgment is contrary to law.

When the defendant failed to appear in court as the bond required, the liability on the bond became absolute and forfeiture was proper. § 29-1106, R.R.S.1943; State v. Kennedy, 193 Neb. 472, 227 N.W.2d 607.

The defendant made no showing on March 29, 1976, to excuse his failure to appear. There is nothing in the record which would support a finding that a forfeiture of the bond was improper.

At the hearing on May 17, 1976, a letter from Dr. Burg was received in evidence. The substance of this report was that the defendant probably suffered from angina pectoris. There is nothing in the report to show the defendant was unable to appear in court at North Platte, Nebraska. No further showing was made at the hearing on May 24, 1976, although defendant's counsel was given an opportunity to attempt to contact Dr. Burg by telephone.

The record fully sustains the forfeiture. The judgment on the bond is affirmed.

AFFIRMED.