Commonwealth v. Allen

• Decision Date: 16 January 1914
• Citation: 162 S.W. 116,157 Ky. 6
• Parties: COMMONWEALTH v. ALLEN.
• Court: Kentucky Court of Appeals

162 S.W. 116

157 Ky. 6

COMMONWEALTH v. ALLEN.

Court of Appeals of Kentucky.

January 16, 1914

Appeal from Circuit Court, Shelby County.

Proceeding by the Commonwealth against Thomas Allen for a forfeiture of a bail bond. From a judgment for the surety, the Commonwealth appeals. Reversed and remanded for further proceedings.

James Garnett, Atty. Gen., Chas. H. Morris, Asst. Atty. Gen., Chas H. Sanford, of New Castle, and P.J. Beard and George L Pickett, both of Shelbyville, for the Commonwealth.

E. B Beard, of Shelbyville, Edwards, Ogden & Peak, of Louisville and Holland & Davis, of Shelbyville, for appellee.

MILLER J.

J. Will Allen was arrested in December, 1910, on a warrant charging him with grand larceny. Upon an examination in the county court he was held to answer said charge before the grand jury, and executed a bond in the sum of $500, with Thomas Allen as his surety, for his appearance before the grand jury at the January term, 1911, of the Shelby circuit court. At that term the grand jury returned an indictment against Allen for grand larceny. The record fails to show that any order was made at the January term, either upon the subject of the return of the indictment by the grand jury, or upon the subject of bail. At the May term, 1911, an agreed order was entered, continuing the case to the next term, the "defendant to remain on the same bond as heretofore." At the September term, 1911, the case was again continued upon the motion of the Commonwealth to the January term, 1912, of the court, the "defendant to remain on the same bond as heretofore." On the night of December 17, 1911, Allen disappeared, and has not been heard of since. At the January term, 1912, his bond was forfeited, a bench warrant was issued for his arrest, and the case continued to the May term. Subsequently a summons was issued against appellee, Thomas Allen, the surety in the bond executed in the county court, to show cause why judgment should not be rendered against him for $500, the amount called for by the bond. In his response to the rule appellee presented three defenses: (1) That he signed the bond in the county court for the appearance of his principal at the January term, 1911, of the circuit court; that his said principal did so appear, and that the surety never consented to thereafter remain bound on the bond executed before the county judge; (2) that Will Allen, the principal in the bond, had died; and (3) that Will Allen was insane at the time of his disappearance, and had been insane for many months prior thereto. The circuit court sustained a demurrer to the first and second paragraphs of the response; and, a trial upon the issue raised by the third paragraph having resulted in a judgment for the surety, the Commonwealth appeals.

The circuit court was of opinion that the proof did not show that Allen was dead; but that it did show he was insane at the time of his disappearance. Allen left the state without telling any one of his intention of leaving, and in such a way and under circumstances that fully justified the conclusion reached by the circuit court. Treating those findings of fact as established, it becomes necessary to consider only the first and third defenses presented by the response.

1. Was the surety bound upon the county court bond after the principal in the bond had been indicted by the grand jury and without the execution of a new bond in the circuit court? By their bond executed in the county court, the principal and his bail covenanted, "that the above-named J. Wm. Allen should appear in the circuit court, on the 1st day of its next January term, to answer said charge, and should at all times render himself amenable to the orders and process of said court in the prosecution of said charge, and if convicted should render himself in execution thereof; or if he should fail to perform either of these conditions, we will pay to the Commonwealth of Kentucky the sum of $500.00." Section 141 of the Criminal Code of Practice, provides as follows: "Upon an indictment being found, if the defendant be not in custody, nor on bail, the court shall forthwith make an order for process to be issued thereon, designating whether it shall be for arresting or summoning the defendant; and if for arresting the defendant, and the offense charged be bailable, the sum in which he may be admitted to bail shall be fixed. If he be on bail the court may order a bench warrant to issue, or commit him to custody, and fix the amount of bail to be given by him." It will be noticed that the last clause of the section just quoted does not make it compulsory upon the circuit court to order a bench warrant, or commit the defendant to custody and fix the amount of bail to be given by him, if he be already on bail; on the contrary, it is discretionary with the circuit court to take such action. We have repeatedly held that the term "may," when used in this way, is not to be construed as meaning "must," but leaves the contemplated action within the sound discretion of the court. Commonwealth v. Swanger, 108 Ky. 579, 57 S.W. 10, 22 Ky. Law Rep. 276; Commonwealth v. Bray, 123 Ky. 339, 96 S.W. 522, 29 Ky. Law Rep. 757. If the circuit court is satisfied with the bond given in the examining court, it may let the defendant remain on the bail so given. The circuit court might, however, be of opinion that the amount of the bail taken in the examining court was insufficient, and in such a case it would be its...