137 Ky. 73 | Ky. Ct. App. | 1909
Opinion op the Court by
— Reversing.
Percy Howerton was convicted in the Crittenden circuit court of a felony. .Prom the judgment based upon the verdict of the jury, finding- him guilty as charged in the indictment against him, he appealed to this court, where the judgment was reversed on the 29th day of September, 1908, 129 Ky. 484, 112 S. W. 606, 33 Ky. Law Rep. 1008. On September 30,1908, the clerk of the Crittenden circuit court, in obedience to a long-distance telephone message from the circuit judge, admitted the defendant to bail in the sum of $1,000, with the appellants, P. A. and G-. W. Howerton, as sureties. Afterwards, on November 5, 1908, the mandate of this court was issued directing the judgment against the defendant to be set aside and awarding him a new trial. The case was then assigned on the docket of the circuit court for another trial. When the trial day arrived, the defendant, having been called, made default and forfeited his bond, and so far as we are advised he is still at large. This procedure is to enforce the forfeiture of the bond against the sureties, the appellants.
The question arising upon the foregoing statement is whether the bond executed by the original defend
In Commonwealth v. Phillips, 116 Ky. 329, 76 S. W. 118, 25 Ky. Law Rep. 544, it was held that, while under section 74, Cr. Code Prac., a person charged with a felony may not be admitted to bail before being brought before a magistrate, and, though the magistrate issuing the warrant indorsed upon it that the defendant might be admitted to bail, the bond ac7 cepted by the sheriff was void. In the cases of Commonwealth v. Ball, 6 Bush, 291, and Covington v. Commonwealth, 3 Bush, 478, it was held that bonds such as involved here, taken by an officer or person
Judgment reversed, with directions to quash the recognizance upon which the appellants are sureties.