Miller v. Commonwealth

• Decision Date: 04 November 1921
• Citation: 234 S.W. 307,192 Ky. 709
• Parties: MILLER ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

234 S.W. 307

192 Ky. 709

MILLER ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 4, 1921

Appeal from Circuit Court, Monroe County.

Proceedings to forfeit bond by the Commonwealth of Kentucky against G. M Miller and others. Judgment for the Commonwealth, and the sureties appeal. Reversed and remanded, with directions.

Basil Richardson, of Glasgow, and G. M. Miller, of Tompkinsville for appellants.

Chas I. Dawson, Atty. Gen., and W. P. Hughes, Asst. Atty. Gen for the Commonwealth.

HURT C.J.

At the August term, 1916, of the Monroe circuit court, an indictment was pending against one Frank Hagan and Linda Hagan, which accused them of the crime of murder. He was admitted to bail in the penal sum of $1,000, and thereupon executed a bond to the commonwealth of Kentucky, conditioned that he would appear in that court on the 7th day of its August term, 1916, to answer the indictment, and would at all times render himself amenable to the orders and processes of the court in the prosecution of the charge, and, if convicted of the crime, would render himself in execution of the judgment, and, if he failed to perform either of the conditions, that he and his sureties would pay to the commonwealth of Kentucky the sum of $1,000. The appellants J. T. Hagan, J. F. Miller, and G. M. Miller became sureties in the bond.

No order of the court with reference to the action appears until the August term, 1918, a period of two years, during which time it is presumed that the defendant, Frank Hagan, was at liberty under this bond. At the August term, 1918, the following order was made, viz:

"August Term, 3d Day, 7th Day of Aug. 1918. Comlth. of Ky. v. Linda Hagan, Frank Hagan. 4939--Murder. This day this prosecution was called for trial, and the defendants being in court in person and by attorney, and the attorney for the commonwealth, announced that it was not ready for trial, and on his motion it is ordered that the defendants and witnesses herein be discharged without day, and they may go hence until they are again summoned, and the clerk will not set this case for trial until 30 days' notice is given defendants before some regular term of court."

No further step seems to have been taken in the action until the August term, 1919, when without any notice having been given to the defendants the following order was made, viz.:

"August Term, 10 Day, 15th Day of Aug. 1919. Comlth. of Ky. v. Linda Hagan, Frank Hagan. 4939--Murder. On motion of attorney for commonwealth, it is ordered that this prosecution be continued until the third day of the next December term of this court, and that subp na be issued for such witnesses as the county or commonwealth's attorney desires, returnable to said day; but subp na will not issue until notice has been served on either the defendants or their attorneys, 30 days or more before the day for trial."

Thereafter the county attorney caused a notice to be served, signed by himself, upon certain persons who are described in the notice as the attorneys of the defendant, Frank Hagan, warning them of the time the action had been set for trial. This notice was executed upon the persons designated as the attorneys more than 30 days before the 3d day of December, 1919, the day upon which the action was set for trial, but no notice to that effect was given to the defendant, Frank Hagan. He failed to appear at the December term, 1919, and forfeiture of the bond was ordered, and the sureties were summoned to show cause, at the April term, 1920, why a judgment should not be rendered against them upon the forfeiture.

The sureties responded that the order, which was made at the August term, 1918, of the court, had the effect to discontinue the prosecution, and to discharge the defendant from their friendly custody as sureties, and to permit him to go when and where he chose, and that he had departed from the state and was residing in Indiana, and they were thereby released from liability upon the covenants of the bond, and, further, that notice had never been given to their principal of the fact of his presence having been required to answer the indictment, on account of his failure to do which the forfeiture had been directed. The response was held insufficient, and judgment was rendered against the sureties for the amount of the penalty of the bond, and they have appealed.

Becoming bail, for one indicted or held for a public offense, is a contract between the sureties in the bail bond and the state, to the effect that the accused, the principal in the bond, will appear in court at the time and place designated to answer the charge, and there submit himself to trial, and will be amenable to the orders and processes of the court in the prosecution of the charge, and, if convicted, will render himself in execution of the judgment, and, if he fails in the performance of either of the covenants, they will pay the penalty of the bond to the commonwealth of Kentucky. Under the provisions of Criminal Code, § 86, the sureties in the bond may relieve themselves of liability upon it at any time by surrendering the principal to the court, if it is in session, or, if the court is not in session, by procuring a copy of the bond and either delivering the principal to the custody of the jailer, or by authorizing a peace officer to perform the service for them.

A principal which seems to be controlling in all cases of the execution of bail is that the sureties have control and custody of the principal, and are bound for his appearance to answer the charge, until they relieve themselves of the liability by surrendering him to the court or to the jailer. Willis v. Commonwealth, 85 Ky. 68, 2 S.W. 654, 8 Ky. Law Rep. 653; Ramey v. Commonwealth, 83 Ky. 534; Miller v. Commonwealth, 1 Duv. 15; Commonwealth v. Coleman, 2 Metc. 385; Gray v. Commonwealth, 100 Ky. 645, 38 S.W. 1092, 18 Ky. Law Rep. 1093; Commonwealth v. Overby, 80 Ky. 208, 44 Am. Rep. 471; Yarbrough v. Commonwealth, 89 Ky. 151, 12 S.W. 143, 11 Ky. Law Rep. 351, 25 Am. St. Rep. 524; Commonwealth v. Allen, 157 Ky. 6, 162 S.W. 116, 50 L. R. A. (N. S.) 252.

In the contract between the sureties and the state, there is also an implied covenant on the part of the latter that it will not interfere with the right of the sureties to retain the principal in their custody, nor with their right to discharge themselves as bail for him, by taking him into actual custody and surrendering him to the court, or delivering him to the jailer, and will furthermore assist them in so doing, through its peace officers if their assistance is necessary, and they are called upon to render such assistance in the manner prescribed by law. Hence the sureties are excused from fulfilling the requirements of the bond if they are prevented by the act of the law, or by the act of the obligee, the state, through its constituted authorities. Holland v. Bouldin, 4 T. B. Mon. 147; Gilamn v. Perkins, 11 N.H. 343; White v. Blake, 22 Wend. (N. Y.) 612; Matoon v. Eder, 6 Cal. 57. Cases supporting this principle are the numerous ones where a person upon bail to answer a public offense is imprisoned in another place in the state, or where he has become insane and is confined by the law in an asylum for the insane.

The same principle would apply where in the prosecution of an offense, or during the pendency of an indictment for an offense, the court without the consent of the sureties in the bail bond of the accused, should make such an order or disposition of the accused that it would prevent their custody of him, or render futile an arrest and delivery of him to the jailer, or would impose upon them a greater liability than required by the terms of the bond....