Schneider v. Commonwealth

• Decision Date: 05 June 1861
• Citation: 60 Ky. 409
• Parties: SCHNEIDER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

60 Ky. 409

SCHNEIDER v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 5, 1861

Where a defendant in a criminal case appears in compliance with his recognizance, and gives new bail, his former bail is no longer liable.

The taking of a bond by a person who has no authority to take bail, is an irregularity which is not cured by section 80 of the Criminal Code.

The sheriff arresting a person by authority of his bail is not authorized to take new bail; he can only take bail when he has made the arrest under a warrant or other process, in which it shall appear that the person is to be admitted to bail in a specified sum. (Crim. Code, sec. 78.)

Before the forfeiture of their bond the bail may surrender the defendant to the jailer, whose duty it will be to detain him in custody, " as upon a commitment." (Crim. Code sec. 81.) He may then be admitted to bail in the mode prescribed by sections 61 and 76 of the Criminal Code.

Appeal from Campbell circuit court.

F. M WEBSTER, for appellant, cited Crim. Code, secs. 92, 81, 82; Ib., title 5, chap. 1.

A. J JAMES, Attorney General, for Commonwealth, cited Crim. Code, secs. 343, 92.

OPINION

BULLITT Judge.

In July, 1855, one Magerhaus having been arrested upon a justice's warrant, charged with keeping a gaming table, the appellant became his surety in a bond for $600, to be void if Magerhaus should appear at the next December term of the Campbell circuit court to answer said charge, and not depart thence without leave of the court.

At said December term, Magerhaus appeared and became bound in a recognizance for $500, with one Pflander as his surety, to appear at the next term, and the cause was continued. In December, 1856, the sheriff arrested Magerhaus by directions of said Pflander, indorsed on a copy of said recognizance, and thereupon Magerhaus gave another bond, with the appellant and one Gries as his sureties, for $500, conditioned as prescribed by the Criminal Code, section 77.

In February, 1858, Magerhaus having failed to appear, his bail bond was forfeited, and it was ordered that a summons issue against his bail, and a judgment was rendered against the appellant for $600, from which he appealed.

The judgment must be reversed, if for no other reason, because the record does not show that the appellant was summoned.

If he had been summoned no judgment could properly have been given against him upon the bond for $600, as Magerhaus appeared in compliance therewith, and gave...