Hicks v. Commonwealth

• Citation: 265 Ky. 123
• Parties: Hicks v. Commonwealth.
• Decision Date: 23 June 1936
• Court: United States State Supreme Court (Kentucky)

Page 123

265 Ky. 123

Hicks v. Commonwealth.

Court of Appeals of Kentucky.

Decided June 23, 1936.

1. Bail; Criminal Law. — Statutory discretion conferred upon court to remit whole or part of sum specified in bail bond if before judgment is entered against bail defendant be surrendered or arrested is a judicial and not an arbitrary discretion, but its exercise will not be controlled by appellate court unless palpably abused (Criminal Code of Practice, sec. 98).

2. Bail. — In determining how much of sum specified in forfeited bail bond should be remitted if before judgment against surety defendant be surrendered or arrested, good excuse operates for surety's as well as defendant's benefit and authorizes remission of whole sum, but if excuse is not good, other facts must be taken into consideration to determine extent of surety's liability (Criminal Code of Practice, sec. 98).

3. Bail. — Purpose of statute allowing remission of whole or part of sum specified in bail bond if defendant is surrendered or arrested before judgment is entered against bail is to secure defendant's being arrested and brought to justice (Criminal Code of Practice, sec. 98).

4. Bail. — Where accused did not appear on date set for trial because of alleged illness, but surety on $1,000 bail bond turned accused over to jailer day after surety was notified that accused had not appeared, entering judgment on bond for $500 held abuse of discretion, notwithstanding accused was absent without good excuse, judgment for no more than $50 with costs being sufficient (Criminal Code of Practice, sec. 98).

Appeal from Boone Circuit Court.

BLAKELY & MURPHY for appellant.

B.M. VINCENT, Attorney General, and GUY H. HERDMAN, Assistant Attorney General, for the Commonwealth.

OPINION OF THE COURT BY CHIEF JUSTICE CLAY.

Reversing.

On April 8, 1935, the grand jury of Boone county indicted Joe Miller for chicken stealing. His trial was set for April 12th, and he gave bond with Jacob Hicks, of Kenton county, as surety in the sum of $1,000 for his appearance on that day to answer the charge. When the case was called for trial on April 12th, Miller was not in court, and the bond was forfeited, and Hicks was summoned to appear at the August term of the court to show cause why judgment for $1,000 should not be rendered against him on account of the forfeiture. Hicks filed a response stating that the summons was served on April 22d, and on the following day he delivered Miller to the jailer of Boone county, and that he was diligent in producing Miller. Accompanying and incorporated in the response was the following affidavit of Miller:

"Joe Miller says that he is the defendant in the above case; that he was under indictment in the Boone circuit court and that his case was set for trial on Friday, April 12, 1935. The defendant says that he expected to be in the Boone circuit court on that day for trial; that on Wednesday, the 10th day of April, `I started out to visit my father who was sick and who lives in Menifee County, Kentucky. I got as far as Lexington, Kentucky and stopped at my cousin's home where I took sick and I was sick in bed until the 19th day of April and was unable to get back for trial.'

"The defendant further says that he is a World War veteran and served in the World War from June 15, 1917, until March, 1919.

"The defendant says that his illness is a rheumatic condition and that at this time he is still suffering from that ailment. The defendant further says that his physical condition was the cause of his not appearing in the Boone circuit court at the time of the trial and that he had no means personally of notifying the court of this condition; that he is now coming in voluntarily and asking the court to set aside the forfeiture of the bond by reason of his inability to be present at the time of the trial."

Being of the opinion that Miller was absent for the purpose of getting a continuance, the court adjudged the response insufficient and entered judgment on the bond for $500. Hicks appeals.

Section 98, Criminal Code of Practice, reads as follows:

"If, before judgment is entered against the bail, the defendant be surrendered or arrested, the court may, at its discretion, remit the whole or part of the sum specified in the bail bond."

The discretion conferred upon the court by the foregoing section is a...