¶1(dissenting).
¶2In spite of the learned discussion by the majority of the court of the various aspects of law relative to the forfeiture of bail money and relief therefrom — with most of which I agree — , I find myself in disagreement with the application of the law to the case at bar.
¶3We have before us not only the circumstance of adjudicated innocence but a whole chain of circumstances which, under M. S. A. 629.59, should be considered on the application for relief. That section does not limit itself to the grounds of relief which would be sufficient in equity but provides for relief on broad grounds, “according to the circumstances of the case and the situation of the party, … (Italics supplied.)
¶4*475This man, who seeks relief, has not only been adjudicated to have been innocent of the crime charged in the indictment, but he has served 38 months under a sentence for that crime adjudicated to have been wrongfully imposed upon him in a trial in which it has been adjudicated that he was subjected to prejudicial error in a county where it has also been adjudicated that he could not obtain a fair trial. While the trial was adjudicated unfair specifically on the basis of certain remarks of the trial judge occasioned by the absence of defendant, there were a total of 18 assignments of error, which reversal on the one count made it “unnecessary to discuss or consider … State v. Shetsky, 229 Minn. 566, 575, 40 N. W. (2d) 337, 342. At least, one other irregularity not related to defendant’s absence was pointed out. Furthermore, an analysis of the remarks that caused the reversal indicates a hostile attitude on the part of the trial judge from the very inception of the prosecution. The trial court itself furnished ample evidence of its hostile attitude toward Shetsky prior to his flight when it explained to the jury how the constitution required him to let Shetsky out on bail and said (229 Minn. 572, 40 N. W. [2d] 340) :
“… I didn’t have any option about it. If I had, I wouldn’t have put him out on bail; …
¶5In the determination that defendant could not obtain a fair trial in Hennepin county, Judge Weeks, judge of the district court for Hennepin county, in a very thorough and learned memorandum, pointed out that many of the reasons why defendant could not obtain a fair trial in that county were present before his flight :
“This case has reached the proportions of a ‘cause celebre’. Even when the case was first tried over four and one-half years ago, the trial judge subsequently said ‘this has been a notorious case, and there have been a thousand and one rumors.’ From its inception this case has aroused public interest far beyond that of any of the cases referred to or any other previously tried in this county in the past twenty-five years. The personages involved in the case aroused unusual interest. The locale of the homicide aroused much specu*476lation as- it took place in a well-known night club after closing hours during the course of a heavy drinking party and the altercation preceeding [sic] the demise of Schneider.”
¶6While it has been adjudicated by this'court, in an opinion by this writer, that defendant’s flight was voluntary, there nevertheless was uncontradicted evidence of extreme, mitigating circumstances which prompted defendant to choose flight, That Shetsky sensed that he could not get a fair trial and voluntarily fled the jurisdiction on that account is not to be doubted from the record. There was evidence that defendant’s counsel had indicated to him that he could not obtain a fair trial because of certain religious, racial, and political considerations. That the attitude of the courtroom spectators was hostile is to say the very least. The fact that defendant’s flight was voluntary may well waive his right to be present during trial and preclude his right to a new trial because of such absence; but, in considering a return of his bail money, it should not preclude an examination of the circumstances prompting such “voluntary” flight. It is my opinion that the legislature had such considerations in mind when it enacted § 629.59.
¶7There is no showing whatever that the state was prejudiced in obtaining witnesses by the 18 months’ delay caused by his flight or even by the 38 months of unjust incarceration. There was no question but that Shetsky shot Schneider. The only question for the jury was whether he was justified in so doing. That it took Shetsky’s friends some years to raise the funds to finance a habeas corpus proceeding should not count against him. It was the fault of the state, not his, that he was illegally imprisoned. Neither he nor his sureties should be penalized for establishing his innocence.
¶8In my opinion, the trial court did not exert a judicial discretion, and its decision should be reversed. If the majority opinion is a sound application of the law and if the trial court’s action is a proper exertion of judicial discretion under § 629.59, then it would seem futile under any circumstances to apply for relief from forfeiture.