The opinion of the court was delivered by: Legge, Justice.
This is an appeal from an order estreating an appearance recognizance. The exceptions are numerous, but only one essential issue is involved, to-wit: Is the State estopped to assert that the condition of the recognizance was breached by appellant Simring, the principal?
At the May, 1955, term of the Court of General Sessions for Orangeburg County, Simon Simring and Margaret E. Estes were jointly indicted on two counts, the first charging sale and distribution of obscene literature in violation of Section 16-414 of the 1952 Code, and the second, conspiracy thereabout. On May 10, 1955, Simring executed a recognizance in the usual form, in the amount of two thousand dollars, with Carolina Casualty Insurance Company as surety, conditioned for his apearance on the opening day of the September, 1955, term, then and there to answer to the indictment and "to do and receive what shall be enjoined by the court".
On the opening day of the term, September 12, Simring's counsel moved for a continuance because of alleged prejudicial newspaper publicity, and the cause was continued to September 19. On that day, the motion for continuance was renewed upon the same ground and upon the further ground that the defendant was unable to attend court because of a recent heart attack. In support of the latter ground his counsel offered a certificate by J. Rabinovitch, M.D., of New York, N.Y., dated September 13, 1955. The presiding judge, without expressly ruling on the motion, continued the matter until September 21.
On September 21 the case was called for trial. The defendant Estes was present with her counsel; the defendant Simring was not present, but was represented by his counsel. The solicitor, in response to the court's inquiry, stated that as to Simring he was asking not for a trial, but for a rule to estreat his bond, and for a bench warrant. Thereupon, following a conference with counsel for the defendant Estes, the solicitor agreed to accept from her a plea of guilty as to the first count, and to recommend that she be given an alternative sentence of a fine of one thousand dollars or imprisonment for two years. At this point, counsel for Simring, who had expressed doubt as to his authority to enter a plea of guilty in his client's absence, agreed with the solicitor to consent to a verdict of guilty as to the first count. The following is from the transcript of the record of this phase of the proceedings:
"Mr. Wolfe: In No. 6, your Honor, I would like to ask the Clerk, upon agreement with counsel, to empanel a jury as to the defendant Simon Simring. If you will call twelve men and put them in the box. A plea will be offered as to the defendant Estes, your Honor.
"The Court: Now in order that this record might be clear, I want it to be entered in the record that by agreemnt of counsel the motion of the defendant for a continuance is withdrawn and the defendant's attorney appears here for him and consents to a trial upon the empanelling of a jury, to a verdict of guilty on the first count. I rule that this is an offense where the defendant can be present either in person or through his counsel, and if he has counsel he can consent to it".
Accordingly, a jury having been sworn, the following verdict was rendered and published: "By express consent of the attorneys for Simon Simring, we find the defendant guilty of count one".
To quote further from the record at this point:
Thereupon the defendant was sentenced, in absentia, to be confined at hard labor for two years or to pay a fine of one thousand dollars.
"Mr. Wolfe: If your Honor pleases, to protect the rights of the State, would I be entitled to a bench warrant?
"The Court: As I said just now, I don't think it would be necessary for a bench warrant if the defendant produces and carries out the sentence.
"Mr. Wolfe: I would like to be protected as to that. I would like for the record to show that he was called three times ...