Wallenweber v. Commonwealth

Decision Date18 December 1867
Citation66 Ky. 68
PartiesWallenweber v. Commonwealth.
CourtKentucky Court of Appeals

1. A summons issued from the city court of Louisville against Wm Smith, " for setting up a real estate agency in the city of Louisville without obtaining a license," was certain to a common intent, and sufficient to inform the defendant of the nature of the accusation; but such summons did not authorize the arrest of his person.

2. Whilst clerks are often allowed by law to take bail when it has been adjudged that the accused shall give bail, there is no law authorizing the clerk to adjudge that bail must be given, and then to take the bail bond; and if he should require such bond without legal authority, it cannot be enforced as a statutory bail bond.

3. The object of bail, in all penal cases, is to secure a compliance with the judgment, and this will be sufficient when stipulated for in the bond; yet, when appearance alone is covenanted for, this must be performed; and, if such bond has been taken in pursuance of law, the non-appearance will be a sufficient forfeiture.

APPEAL FROM LOUISVILLE CITY COURT.

J. R GREENE, For Appellant,

CITED--

Criminal Code, sec. 80.

H MARSHALL, On same side,

CITED--

1 Duvall, 1; Shaw vs. Commonwealth.

1 Duvall, 245; Johnson vs. Commonwealth.

1 Duvall, 199; Commonwealth vs. Roberts.

JOHN RODMAN, Attorney General, For Appellee,

CITED--

Criminal Code, secs. 303, 304.

W. G. REASOR, On same side,

CITED--

Sess. Acts, 1865, p. 270, sec. 18.

3 Bush, 19; Commonwealth vs. Skeggs, & c.

OPINION

WILLIAMS JUDGE.

The summons issued against Wm. Smith, " for setting up a real estate agency in the city of Louisville without obtaining a license, contrary to an ordinance of the city," was certain to a common intent, and sufficient to inform him of the nature of the accusation; but it did not authorize an arrest of his person.

The officer, without legal authority, seems to have arrested Smith and taken him to the city court room, when, in the absence of the city judge or other judicial officer, or any order from such, requiring him to give bail, the clerk took a bond requiring his personal appearance in court the following morning.

Whilst clerks are often allowed by law to take bail, when it has been adjudged the accused shall give bail, we know of no law authorizing the clerk to adjudge that bail must be given, and then take the bail bond; and if he should...

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1 cases
  • State v. Sureties of Krohne
    • United States
    • United States State Supreme Court of Wyoming
    • October 2, 1893
    ......32; Peck v. State, 23 Ark. 235; 1 Blackf. (Ind.), 338; Fleece v. State, 25 Ind. 384; State v. Stout, 11 N. J. L., 147;. Commonwealth v. Skeggs, 3 Bush. (Ky.), 19; State. v. Wellman, 3 Ohio 14.) The statutes authorizing the. information to be filed by the prosecuting attorney ... State, 63 Ala. 195; State v. Wyatt, 6 La. Ann. 701; State v. Gilbert, 10 La. Ann. 524; State v. Jones, 3 La. Ann. 9; Wallenweber v. Commonwealth, 66. Ky. 68, 3 Bush 68; Schneider v. Commonwealth, 60 Ky. 409; [4 Wyo. 352] McCole v. State, 10 Ind. 50;. Dickinson v. ......

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