Combs v. Commonwealth

103 Ky. 385 | Ky. Ct. App. | 1898

JUDGE HAZELRIGG

delivered the- opinion op the court.

One Stone stood indicted under three separate indictments for embezzlement, and gave three separate bonds, with appellants as his sureties, for his appearance to the October term, 1896, of the Woodford Circuit Court. At that term he appeared and was tried and acquitted on one of. the indictments, and another one was dismissed. At the succeeding term the court was engaged in the trial of other eases until so near its close that it was manifest no other jury cases could be tried, and it therefore announced that all other cases would be continued until the nest term.

On the succeeding day after this announcement, and while the court was engaged in the trial of a criminal case, the attorney- for the Commonwealth had the Stone case called, and when the defendant did not answer, an order was made, forfeiting his bail bond in the case that had not been disposed of at the former term. In answer to a summons on this forfeiture, the sureties contend that the trial of the defendant Stone, on the first indictment, and the court’s custody of his person consequent on such trial, deprived the bail of the custody of the defendant and effected a discharge of their covenant.

The principle involved, say counsel, is that the surety has a right at every moment of time to have his principal re-arrested and placed in custody; and that whenever the Commonwealth takes the principal into custody, instantly the contract is at an end, for the Commonwealth has interposed and deprived the surety of his rights.

If the accused, after his trial had commenced under the first indictment, had escaped, his bondsmen, in that particular case, -would doubtless have been released unless they had appeared and consented to remain on his bond. (Willis v. Commonwealth, 85 Ky., 69.) But we are not able to perceive how this is to affect the defendants sureties on a bond executed in a separate and distinct prosecution. As a matter of fact the right of the sureties on the last bond to surrender the defendant to the jailer at any time — even during his trial under the first indictment — was in no way abridged by reason of the trial. A delivery to the jailer of a certified copy of the bail bond, accompanied with a surrender of the person of the accused, wdiile he was on trial, would have protected the sureties from further liability.

It is further contended that the attorney for the State was not authorized to take an order of forfeiture after the court had announced that the case would be continued until the succeeding term. But if this be conceded, the covenant of the sureties remained, to have the accused in court to answer the charge contained in the indictment. Even after entry of the order of forfeiture, an avoidance of the obligations of the bond might have been effected by the appearance of the accused and his surrender in answer to the prosecution.

In itself the order of forfeiture did not entail on the sureties any injury or deprive them of any right. No judgment was sought until after citation, and thus time was given to re-arrest the accused.

Moreover, it does not appear that the accused was present when it is said that the court announced that all other cases would be continued, or that he was present at all at that term of court. If he was already a fugitive from justice, as we infer from the evasive statements of the answer, the order of forfeiture was in no way prejudicial to the sureties, and if he was not such a fugitive, and the order of the court continuing the cases and ordering this forfeiture did in fact mislead the accused or his sureties, the pleading ought to have so disclosed.

The order sustaining a demurrer to the answer of the sureties was proper, and the judgment on the bond is affirmed.