Commonwealth v. Salyer

71 Ky. 461 | Ky. Ct. App. | 1871

JUDGE HABDIN

delivered the opinion op the court.

On the 13th of December, 1870, James Mays, being under arrest in Montgomery County, and charged with the crime of murder committed in Lewis County, was brought before W. H. Winn, the presiding judge of the Montgomery County Court, for an examination of the charge; and the prisoner desiring a postponement of his case, the appellee, W. J. Salyer, and another, executed a bail-bond in the sum of five hundred dollars, stipulating that Mays would appear before Winn on the 15th of said month to answer said charge. Mays appeared on the day designated in the bond, but by consent his case was continued until the 26th day of the same month; but he then failed to appear, and thereupon the judge indorsed the bond “ forfeited,” and transmitted it to the circuit court, where this action was instituted by the commonwealth 'for a recovery on the bond.

The appellee, being duly summoned, appeared, and in answer to the summons presented several grounds of defense; one of which, and the only one which will now be considered, being that the judge of the Montgomery County Court had no power or authority to require or take the bail-bond, and that it was therefore void.

Since the passage of the act of March 8, 1867, “to amend the Criminal Code of Practice,” a county judge, or other magistrate or officers composing an examining court, having in custody a person charged with the commission of a felony within his or their jurisdiction as an examining court, may, on a postponement of the examination, admit the accused to bail. But where, as in this case, the offense is charged to have been committed in another county than that in which the arrest is made, and is a felony, the authority of the judge or magistrate before whom the defendant may be brought is limited to the inquiry, whether there are sufficient grounds for an examination in the county in which the offense may have been committed; the duty of the magistrate being, in that event, to “commit the defendant to a peace officer, to be conveyed by him before a magistrate of the county in which the offense is charged to have been committed.” (Criminal Code,' sec. 43.) But in such a case we are aware of no law authorizing the magistrate to take temporary bail for the appearance of the accused before him, either during the examination or preliminary to it.

We are of the opinion therefore that the judgment in bar of the proceeding against the appellee was properly rendered. Wherefore said judgment is affirmed.