Briggs, Sr. v. Commonwealth

• Decision Date: 20 June 1919
• Citation: 185 Ky. 340
• Parties: Briggs, Sr., et al. v. Commonwealth. Irvine, et al. v. Same.
• Court: Kentucky Court of Appeals

185 Ky. 340

Briggs, Sr., et al. v. Commonwealth.

Irvine, et al. v. Same.

Court of Appeals of Kentucky.

Decided June 20, 1919.

Appeals from Nelson Circuit Court.

N. W. HALSTEAD and F. A. DAUGHERTY for appellants.

ERNEST N. FULTON, JOHN S. KELLY, JOHN A. FULTON, J. LEWIS WILLIAMS, Commonwealth's Attorney, and CHAS. H. MORRIS, Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE QUIN — Affirming.

Lud Bodine and Andrew Briggs, Jr., were indicted by a grand jury of Nelson county, for the offense condemned by section 1155, Kentucky Statutes, and were released on bail furnished by appellants and another. Bodine's bail was fixed at $2,500.00, and that of Briggs at $2,000.00.

We shall designate the accused as defendants, the sureties as appellants.

After having been twice continued on defendants' motion the cases were called for trial June 5, 1918, when a similar motion by the defendants was overruled. Defendants failing to answer when called, the bonds were forfeited and summons issued against appellants, returnable the first day of the October term, 1918, to show cause, if any they could, why judgment should not be rendered against them on said forfeitures.

November 13, the court rendered separate judgments against the appellants for the respective amounts of the bonds, and to reverse said judgments these appeals have been prosecuted.

The proceedings in the two cases are identical. In the answer it is alleged: (1) That defendants registered on June 5, 1917, under the selective service act; they were duly classified and placed in Class 1A, and on May 25, 1918, they were called by the local board and inducted into the national army; (2) defendants and appellants alike were deprived by the regulations of the army from defending the indictments, and because of the detention of defendants in the army the court had no jurisdiction over the defendants or appellants; (3) under the act of Congress, known as "The Soldiers' and Sailors' Civil Relief Act," the court was without jurisdiction to proceed or to enter judgment on the obligations of appellants, and they asked that the order forfeiting the bonds be set aside and held for naught.

The allegations of the answers were controverted by a reply. On the motion to set aside the order forfeiting the bonds the appellants introduced no proof, but the testimony on behalf of appellee may be summed up as follows:

The defendants were eligible for service under the selective service act; they registered June 5, 1917; later their questionnaries were properly executed; they were classified and placed in Class 1A; it is provided in rule 13 of the selective service regulations that "Any registrant . . . at large on bail under criminal process shall first be classified and recorded as any other registrant; but, pending his dicharge from confinement, or the final disposition of his case, he shall be treated as standing at the bottom of Class IV, and so recorded by entering in red ink next to and in the same column with his name on the classification list (Form 1000) the figure IV."

The county attorney was insisting before the local board that this rule should be followed in the case of the two defendants, while counsel for the defendants was claiming they should be left in Class 1A, and taken in the order of their call. Being in doubt as to the proper procedure in the matter, members of the local board of Nelson county communicated with the chief of selective service for Kentucky, at Frankfort, informing him of the nature of the charge against defendants, and the board was advised to leave them out of the regular call. After these instructions were received by the local board, attorneys representing defendants went to Frankfort, and following said visit and within about two days after receiving orders to leave the defendants out of the call, the local board received instructions rescinding the former order and were told to take the defendants in the order of call in Class 1A. They were so placed and on May 25, 1918, were inducted into the military service of the United States government and stationed at Camp Zachary Taylor, Kentucky.

Before their induction, the local board received a request, by telephone, from a naval recruiting office in Louisville, to release the defendants from the order of their call, so that they could be enlisted in the navy, and after insistence upon the part of this recruiting office a consultation was held among the members of the local board and the recruiting office having been advised of the status of the defendants and of the charge against them, the request for their release was withdrawn.

About two weeks before June 5, 1918, the day of trial, appellants called upon the circuit judge at Munfordsville, in behalf of the defendants, and he referred them to the Commonwealth's attorney at Glasgow.

Appellants told the Commonwealth's attorney they wanted to get the defendants in the army and that they could get them in if he, the Commonwealth's attorney, would be willing to grant a continuance of their cases at the next term. They were advised this could not be done and if the witnesses for the prosecution were present the Commonwealth would insist upon a trial. When the Commonwealth's attorney reached Bardstown to attend the June term of court, he was advised by the county attorney that the defendants had been inducted into the military service of the government. Thereupon he immediately communicated with the officer, at Camp Zachary Taylor, in charge of defendants, informing him of the trial and requested said officer to issue passes or grant furloughs to the defendants to enable them to attend the trial. This the officer promised to do. About 8 o'clock on the morning of the trial, the Commonwealth's attorney received a telephone message from one of the officers at the camp in charge of the defendants, that in compliance with his request he had tendered a pass to one of the defendants and he would not accept it and said he did not want to come to Bardstown to stand trial.

The captain commanding the company to which the defendants had been assigned, the adjutant of the battalion and the sergeant major, testify that a request was received from the Commonwealth's attorney for a leave of absence for the defendants, and that the officer having authority to issue passes immediately made a search for the defendants; he located the defendant Bodine, told him they wanted him to attend trial at Bardstown the next day and offered him a pass for himself and for the defendant Briggs; that Bodine declined to receive a pass; said he did not want it and that he could answer the same for Briggs. Under the regulations of the army passes can be granted by the company officers for any period under nine days, and at the expiration of this limit they have authority to extend the time not exceeding an additional nine days. A furlough, which is for a period of 10 days or over, can be granted only by higher authorities. It is also in evidence that the morning train leaving Louisville reaches Bardstown about 10:30, which would have been in time for the trial, and Bardstown is about forty miles from Camp Zachary Taylor.

Had defendants been placed at the bottom of Class IV, as provided in rule 13, they would never have been called into the service.

As to the release of bail. In this state where the principal is actually confined in an insane asylum, being thus in the custody of the state, and beyond the power of the sureties to produce him, the latter is discharged. Wood v. Commonwealth, 17 Rep. 1076, 33 S. W. 729. Likewise where the principal has been adjudged to be of unsound mind. Commonwealth v. Fleming, 15 Rep. 491.

But where the principal, though insane, has not been so adjudged, the bail is liable if he permits the accused to escape beyond the jurisdiction and the court being in law the custodian of the principal, his surety must produce him, either for trial or for surrender as provided by statute. Commonwealth v. Allen, 57 Ky. 6.

The arrest and confinement of the principal for crime in another state does not relieve the bail. Withrow v. Commonwealth, 1 Bush 17; Yarbough, etc. v. Commonwealth, 89 Ky. 15; Hall v. Commonwealth, 20 Rep. 99.

Where the Commonwealth has taken the principal into its custody for another offense and thereby prevents his appearance and discharge of the recognizance it presents a good defense for the sureties when proceeded against for forfeiture. Alquire v. Commonwealth, 3 B. Mon. 340; Kirby v. Commonwealth, 1 Bush 113.

And, overruling Commonwealth v. House, 13 Bush 680, the court in Commonwealth v. Overby, 80 Ky. 208, held that where accused had been convicted by the federal court for the same offense charged against him in the state court, the effect was the same as if his non-presence was caused by the Commonwealth, for the authority of neither can be resisted by the bail or by the defendant, and in both cases the bail being deprived of the aid and protection of the Commonwealth, to which under the contract he is entitled, he was released.

Where the principal was arrested and removed from the county by order of an official of the United States government and the surety thereby deprived of the power to surrender him he cannot be made responsible on the bail bond for the failure of the principal to appear in answer to the charge. Commonwealth v. Webster, etc., 1 Bush 618.

And if the principal on the day fixed for his appearance was a soldier in the federal army, at a remote distance from the court, was refused a furlough, which he solicited, to enable him to attend in the discharge of his recognizance, this was held a good defense, it being alleged that he would have been in court had the furlough not been denied him, and his attendance was prevented without fault on his part and against his will. Commonwealth v. Terry, 2 Duvall, 383.

That the cognizor was an infant under the control of his mother who removed him out of...