Commonwealth v. Roberts

• Decision Date: 27 September 1864
• Citation: 62 Ky. 199
• Parties: Commonwealth v. Roberts.
• Court: Kentucky Court of Appeals

62 Ky. 199

Commonwealth v. Roberts.

Court of Appeals of Kentucky.

September 27, 1864

1. A jailer has no authority to take bail, and a bail bond taken by him is not binding on the sureties, either as a statutory or common law obligation. (Criminal Code, secs. 23, 79.)

2. The delivery of the defendant from prison, by reason of the giving of such bond, is not a sufficient consideration to uphold it, because it does not exempt the defendant from recapture.

3. Such bond can derive no validity from sec. 80 of the Crim. Code. (MS. opinion in Tyre vs Commonwealth, June term, 1856, overruled. )

APPEAL FROM HENRY CIRCUIT COURT.

J. L SCOTT, for appellant, cited Civ. Code, sec. 80; 18 B. M., 29; 1 Marsh., 84; 6 Barr, 348; 15 Ala., 431; 2 Bibb, 199; 4 Litt., 235; 2 Litt., 306; 3 Mon., 342; 4 Mon., 225; 2 J. J. M., 418, 473; 3 J. J. M., 182, 437; 1 Parsons on Contr., 363.

J RODMAN, for appellee, cited Crim. Code, secs. 23, 79; 14 B M., 390.

OPINION

WILLIAMS JUDGE.

Roberts having been indicted, arrested and imprisoned in Henry county, for murder, sued out a writ of habeas corpus, on the trial of which the circuit judge made this order:

" The court upon the hearing of this case decides that the prisoner is entitled to bail, and orders that when he executes bond in the sum of $1,000, with good security in that amount, the jailer will discharge him from prison."

Whereupon said Roberts, with his two sureties, executed bond before the jailer. Roberts not appearing to answer the indictment according to the covenant in the bond, it was taken as forfeited, and this proceeding instituted to recover thereon as a common law obligation.

A demurrer was sustained to the petition and the suit dismissed by the court, to reverse which this appeal is prosecuted.

By the last clause of section 23, Crim. Code, " sheriffs, constables, coroners, jailers, marshals and policemen" are designated " peace officers."

Section 79 provides that " no peace officer, except sheriffs or under-sheriffs, can take bail."

It is conceded that the jailer had no legal authority to take the bail, and that the recognizance is not a good statutory bond; but it is insisted on as valid at common law.

In Commonwealth vs. Littell (1 Mar., 566-7) a bond executed before a circuit judge during term time was held as " taken without competent authority, and consequently void, " because the judge had no right in term time to take such recognizance, and could do so only in open court.

In Madison et al. vs. Commonwealth (2 Mar., 131-2) it was held essential to recovery that the scire facias should show that the recognizance was acknowledged before some person authorized to take it.

In Chinn vs. Commonwealth (5 J. J. Mar., 30) it is said: " We must interpret the sci. fa. as meaning that the recognizance was taken by the clerk out of court; or, in other words, by the clerk, and not, as it should have been, by the court. Such a recognizance is insufficient. To authorize a judgment against a cognizor, the sci. fa. should recite a valid recognizance, and, consequently, it must show that the acknowledgment was made to an officer authorized by law to receive it. "

In Frishe vs. Commonwealth (6 Dana, 318) this court held that, if the city judge had the right to recognize the defendant, he had " no right to delegate that authority to the marshal, or to have directed him to recognize Rodes to appear in court for a final trial," and that the recognizance was not good as a statutory obligation.

In Bowman, etc., vs. Commonwealth (14 B. Mon., 390) it was held that a county judge could not, alone, take a recognizance in a criminal case, and that " the recognizance in this case, having been taken before the county judge alone, is not valid, for want of authority in him to take it."

In Schneider vs. Commonwealth (3 Met. Ky. Rep., 410) it is decided that the taking a bond by one who has no authority to take bail is an irregularity not cured by section 80, Criminal Code. The court, it is true, said: " Whether or not it can be enforced as a common law bond, in a proper proceeding, is a question not now before us, and upon which we express no opinion." In the subsequent case of Moore vs. Commonwealth (3 Met., 377-8), it was held that as the mayor of Covington had no legal authority to take bail of one accused of a felony whilst sitting as an examining court, that " the bail bond taken for his appearance during the examination was unauthorized and void."

None of these cases seem to have been upon direct proceedings to test the question...