42 Ky. 349 | Ky. Ct. App. | 1843
delivered the opinion of the Court.
To a scire facias, upon a recognizance entered into by Joseph and Michael Alguire, in August, 1840, for the appearance of said Joseph in the Kenton Circuit Court, on the first day of its next succeeding term, tn answer to a charge of felony, the defendants, by their attorneys, pleaded, that on the day designated in the recognizance for the personal appearance of said Joseph in the Circuit Court of Kenton County, he was taken and held in custody by the Commonwealth, and was held and kept in prison by her in the city of Louisville, and State of Kentucky, upon a prosecution and charge of felony, and has been held and kept imprisoned by said Commonwealth ever since. A demurrer to this plea was sustained, and final judgment having been rendered against the defendants, the only question which we shall consider is, whether the plea is sufficient. ^
The defence presented by the plea must be regarded in one or the other of these two aspects: 1st. As showing that a compliance with the condition of the recognizance, by the personal appearance of the principal in the Kenton Circuit Court on the day appointed, had been prevented by the act of the plaintiff in arresting and imprisoning him at another place — Or 2d. As showing a virtual compliance with the condition, in the fact that the Commonwealth had the body of the principal on the day, and' might dispose of him as she pleased, either by bringing him to trial in the city of Louisville, where she then held him imprisoned, or by removing him to the County of Kenton, where he had been first recognized to appear.
Considered under the first aspect, the plea seems to be defective, in not showing that the arrest and imprisonment of the principal at Louisville, was in fact, or even
Nor does it, in our opinion, show a substantial performance of the condition, or a virtual attainment of the object intended to be attained, and which would have been attained by a compliance with the recognizance. The object of the recognizance was to insure to the Commonwealth the means and opportunity, so far as they de. pend upon the personal appearance of the accused, of trying the principal cognizor in the County of Kenton, for an offence charged to have been committed by him in that County. But as the Commonwealth, acting only through numerous and distant agencies, cannot be supposed to know at once all that may be done by them in her name at different places, she could not avail herself of the arrest and imprisonment of the principal in Louisville or Jefferson County, for the purpose of trying him in the County of Kenton, unless information of the arrest were communicated to the Kenton Circuit Court, whereby that Court might take steps for having the prisoner brought before it immediately, or after the proseen
But it is not necessary to decide how far the defendants, or either of them, should have gone in taking the steps requisite for making the imprisonment in Louisville available for the purpose of this recognizance, for the plea does not show that they have taken any step, even by communicating the facts to any tribunal or officer of the Commonwealth, nor does it aver that they had been, by any means, made known to her agents; and we are satisfied that the naked fact that the principal was taken and imprisoned in Louisville on the day appointed for his appearance in the Kenton Circuit Court, and was held in prison until the filing of the plea, was neither a compliance nor a dispensation with the condition of the recognizance; and therefore, that the plea does not make out a defence on either of the grounds mentioned..
It may be said that by filing the plea, the defendants gave information of the facts, which may enable the Commonwealth to hold and dispose of the prisoner for the purpose of trial in the Kenton Circuit Court. But if the mere averment of facts in a plea were not such a regular and authentic communication of them as should authorize and require the action of the Court, in bringing up the body of the prisoner, or securing his ultimate appearance, which is not conceded, still the only legal question upon the plea is, whether the facts stated furnish a sufficient answer to the scire facias, by either showing a performance or excusing the non-performance of the condition of the recognizance, and (hat question, as we apprehend, is to be decided with reference to the sufficiency of the facts as slated, and not with reference to what might be done by the Court or the Commonwealth in consequence of the filing of the plea. Besides, if issue were taken on the plea, the only matter to be tried would be, whether the facts therein stated were true. And as it is obvious that those facts might be true, and yet that before the Commonwealth could avail herself of the information communicated to the Kenton Circuit Court by the filing of the plea, the prisoner might have been discharged from custody in Louisville, either by acquittal from the prose
Wherefore, the judgment is affirmed.