213 S.W.2d 313 | Ky. Ct. App. | 1947
Affirming.
This is an appeal from a judgment of the Whitley Circuit Court forfeiting a bail bond.
On May 29, 1946, the grand jury of Whitley County returned an indictment against Rudell Fleenor charging him with the crime of robbery, and the case was assigned for trial on June 14, 1946. When the case was called the defendant filed a motion for a continuance supported by affidavits, the motion was sustained, and the case was continued to the September term of court. Fleenor was admitted to bail in the sum of $2,500, and his mother, Anna Mae Fleenor, deposited with the circuit clerk $2,500 in cash in lieu of bail, and he was released from custody. The case was called for trial September 25, 1946, and was reassigned to October 17, 1946. Fleenor failed to appear on the day set, and the Commonwealth's Attorney *2 moved to forfeit the bond. On the next day Fleenor and his mother filed a response to the motion in which they stated that Fleenor was unable to be present when the case was called for trial on October 17, 1946, because at that time he was on trial in the District Court of the United States for the Southern District of Indiana at Evansville, Indiana, and was in the custody of the officers of that court. They filed as exhibits certified copies of orders of the District Court which showed that Fleenor had been convicted on two counts of an indictment charging him with violations of the White-Slave Act, 18 U.S.C.A. sec. 397 et seq., and had been sentenced to confinement in a Federal prison for a term of five years for each offense, the two sentences to be cumulative and not concurrent. The Circuit Court adjudged that the $2,500 deposited with the clerk as cash bail be forfeited to the Commonwealth, and Rudell Fleenor and Anna Mae Fleenor have appealed.
The appellants insist that a judgment of forfeiture cannot be had because the defendant Fleenor at the time he was to appear in the Whitley Circuit Court was in custody in Indiana on a charge pending against him in the United States District Court, and Commonwealth v. Overby,
In Hicks v. Commonwealth,
The instant case is entirely different from the cases which hold that sureties are not liable for failure to produce a defendant in court in accordance with the terms of the bail bond when such failure is due to the act of the state itself which is the obligee in the bond. According to the great weight of authority, both in State and Federal courts, the surety on a bail bond is not exonerated where incarceration of the principal in a different jurisdiction for a second and different *4
offense against the laws of that jurisdiction prevents him from appearing in accordance with the terms of the bond. Weber v. United States, 8 Cir.,
The judgment is affirmed.