Commonwealth v. Philllips

116 Ky. 329 | Ky. Ct. App. | 1903

Opinion of the court by

JUDGE NUNN

Affirming.

It appears from the record that on the 28th of July, 1902,. J. H. McConnell was police judge of the city of Catlettsburg, Boyd county, Ky.; that on that day he issued a warrant of arrest, directed to the sheriff of Pike county Ky., charging Phillips with a felony, to-wit, obtaining money by false pretenses, and representations; that the offense was committed in the city of Gatlettsburg, and directing the sheriff to arrest him, and bring him to his office in Catlettsburg to answer the charge. The police judge made this indorsement on the warrant: “Defendant may give bond for his appearance to answer the within charge in the sum of $300. J. H. McConnell, P. J. C. C.” The sheriff of Pike county arrested Phillips, and took his bond, with James .Hatcher as surety. The bond is as follows: “We acknowledge ourselyes bound to the Commonwealth of Kentucky i.n the sum of |300 that Zachariah Phillips will appear in the Catlettsburg police court on the 1st day of September,. 1902, to answer the charge in the within warrant. This the 8th day of August, 1902. Z. W. Phillips. James Hatcher.” Phillips failed to appear at the time stated in' the bond, and the police judge indorsed the word “Forfeited” thereon, and returned the bond to the circuit court clerk's office. The circuit court directed a summons to be issued thereon against James Hatcher, who appeared and demurred to the proceeding against him. The court sustained his demurrer and dismissed the proceeding against him, and the Commonwealth has appealed.

The only question to determine is whether or not the police judge had the legal right to indorse bail on this warrant, and whether or not the sheriff had the right to accept bail by yirtufe of such an indorsement. Under section 27 of the-Criminal Code a magistrate in issuing a warrant of arrest shall, in brief, describe the offense, state the county in which it was committed, and command the officer to whom it w-as directed to arrest the person named therein, and bring him before some magistrate of the county in which the offense was -committed, to be dealt with according to the law. This section requires that the person arrested .be brought before the court, but, as modified by the next section, it is left applicable alone to felonies. The next section (No. 28) declares that, if the offense charged be a misdemeanor, the magistrate issuing the warrant shall indorse thereon, the amount of bail to be given by the person charged, and that the bail may be taken by the sheriff of the county where the arrest is made or where the offense was. committed. This bond may also’be taken by a deputy sheriff, or by any constable making the arrest. By the next succeeding section it is stated if the defendant give bail for his appearance before the magistrate for an examination of the charge as provided in the last section, the officer taking the bail shall fix the day of the defendant’s appearance, etc. This. section confines bail given for the appearance before the magistrate for an examination to one charged with a misdemeanor, and excludes the idea that one charged with a felony can give bail for his appearance before a magistrate. By section 33 it is provided that the officer who has executed the warrant of arrest shall make return on the warrant of the time and manner of executing it, and deliver the warrant to the magistrate before whom the defendant is brought, or, if bail be given as provided by section 28, shall deliver the warrant and bail bond to the officer before whom the defendant is bound by the bail bond to appear for án examination of the charge. By the foregoing sections it is made clear that a person charged with a felony can not be admitted to bail before being brought before a magistrate. In further support of this conclusion reference is made to section 7i of the Criminal Code, which provides: “Before conviction, the defendant may be admitted to bail — 1st for his appearance before a magistrate for an examination of the charge, if the offence charged be a misdemeanor; or, 2d, for his appearance in the court to which he is sent for trial (meaning after the magistrate has held the examining trial, etc.)” From these provisions of the Code we are of the opinion that the police judge had no legal authority to indorse bail on the warrant ■of arrest, and the indorsement of bail did not authorize the ¡sheriff to accept the bond. Their acts in this matter being unauthorized and illegal, therefore the bond was void, and the surety, Hatcher, was not bound thereon, and the lower court was right in sustaining the demurrer.

Wherefore the judgment is affirmed.