Rice v. Commonwealth

• Decision Date: 05 December 1867
• Citation: 66 Ky. 14
• Parties: Rice, & c., v. Commonwealth.
• Court: Kentucky Court of Appeals

66 Ky. 14

Rice, & c., v. Commonwealth.

Court of Appeals of Kentucky.

December 5, 1867

1. " Striking with intent to kill" is but a charge for an aggravated misdemeanor, and not for a felony, under the statute.

2. Police judges are magistrates in contemplation of the Criminal Code. (Commonwealth vs. Cummins, 18 B Mon. )

3. A single justice, in cases of misdemeanor, can hold to bail and take the bail bond. (Thorp vs. Commonwealth, 3 Met., 411.)

4. A writ of habeas corpus or process on a charge of treason, felony, or for a riot or breach of the peace, or upon an escape out of custody, may be executed on Sunday. (Sec. 12, art. 1 chap. 91, 2 Stant. Rev. Stat., 342.)

5. The right to have certain writs and process executed on Sunday includes the right to sue them out, and authorizes the proper officers to perfect this right by issuing such writs and process on Sunday.

6. The issuing and executing the warrant on Sunday was legal, and the police judge had the right, at the defendant's request, to grant him two days for preparation for his examining trial, and to take his recognizance for his then appearing.

7. A bail bond or recognizance, executed before an officer authorized to take the same, on Sunday, is legal and binding on the defendant and his sureties.

8. There is a material distinction between an officer de facto, with general duties to perform through a stated term of office, and a special court organized for a single specified trial.

9. When a man is exercising and discharging the general duties of an office, claiming right thereto under a commission or appointment, he is an officer de facto, and generally, if not universally, his acts are good as to third parties, however irregular his appointment or qualification and notwithstanding he may be personally liable to a party aggrieved by his official action. (Justices of Jefferson Co. vs. Clarke, 1 Mon., 82; Wilson vs. King, 3 Littell, 459; Rodman vs. Harcourt & Carrico, 4 B. Mon., 224.)

10. The validity of a bail bond being questioned upon the ground that the police judge before whom it was executed was qualified by a notary public, the Court say: " We do not say that, even as the poliee judge was acting under a regular commission and appointment, that his oath would be void; but, if it was legally invalid as to himself, his acts as to third parties are binding."

APPEAL FRON BATH CIRCUIT COURT.

R. GUDGELL & J. M. NESBITT, For Appellants,

CITED--

Criminal Code, secs, 47, 23, 24, 25, 26, 48, 49.

Session Acts, 1849-50, page 477.

Rev. Stat., sec. 12, art. 1, chap. 91, 2 Stant., 342.

3 Duvall, 437; Moore vs. Hagan.

Rev. Stat., sec. 13, chap. 71, 2 Stant., 192.

Rev. Stat., sec. 11, chap. 71, 2 Stant., 191.

1 Bush, 176; Tompert vs. Lithgow.

JOHN RODMAN, Attorney General, For Appellee,

CITED--

Rev. Stat., 1 Stant., sec. 12, page 342.

2 Duvall, 437; Moore vs. Hagan; 5 Littell, 199.

OPINION

WILLIAMS JUDGE.

This is a judgment on a forfeited recognizance, executed on Sunday, before the police judge of Owingsville, who had issued the warrant, to appear on a future day for a preliminary trial.

It is urged in error that the bond was invalid, because the police judge could not take it; and if he could, then not on Sunday, and also because the police judge, though regularly commissioned and acting as such, had been qualified before a notary public, who had no legal authority to administer official oaths.

The charge in the warrant was for " striking with intent to kill, " and not for wounding with such intent; and therefore it was but a charge for an aggravated misdemeanor under our statutes, and not for a felony.

By section 46, Criminal Code, " a magistrate of the county in which a public offense has been committed, is authorized to examine the charge and commit to jail or hold to bail the person charged with its commission.

By section 48, the magistrate may adjourn the examination trial from time to time, not exceeding two days at each adjournment.

By section 49, if the offense be a misdemeanor, " the defendant may give bail. "

In Commonwealth vs. Cummins (18 B. Mon. ) this court held, that police judges were magistrates in contemplation of the Criminal Code; and in Thorp vs. Commonwealth (3 Met., 411) it held, that in misdemeanors a single justice could hold to bail and take the bail bond.

This being a charge of misdemeanor, the police judge could adjourn the examination for two days and take a bail bond for the defendant's appearance.

It is provided by section 12, article 1, chapter 91, Revised Statutes (2 Stant., 342), that " a writ of habeas corpus, or process on a charge of treason, felony, or for a riot or breach of the peace, or upon an escape out of custody, may be executed on Sunday. "

These writs cannot be executed unless they shall first have been issued; the right, therefore, either to the Commonwealth or individuals, to have such executed on Sunday, gives the right to sue them out on that day. The right to a party to sue out such writs authorizes the proper officer to perfect this right by issuing them. The issual and executing the warrant on Sunday was, therefore, legal, and the police judge had the right to grant, as he did, at the defendant's request, two days for preparation for his examining trial, and to take his recognizance for his then appearing.

There is a material distinction between an officer ...