Simpson v. Commonwealth

31 Ky. 523 | Ky. Ct. App. | 1833

Chief Justice Robertson

delivered the Opinion of the Court.

It seems to this court, that the circuit court erred in overruling the demurrer to the scire facias.

First. The scire jadas does not show, that the recogni-sanee had been returned to the circuit court as required by law. Madison vs. The Commonwealth, 2 Mar. 132.

, . . . ... . Second, l he recognisance contains a condition, that it should be void if the principal should appear in the circuit court to answer “the charge herein,” and gives no other description of the charge.

The scire facias states that it was a charge .of felony, This apparent variance cannot be corrected by refer-rence to any previous record-, made up two days be- - i > f . i • mi • • fore the date of the recognisance, l he recognisance is not good on its face; it contains nothing that would show , , ... . • , that the principal cognisor was charged with a ieiony. Nor is there such a connection between the recognisance / ° and the record of the prosecution, which had ended two days before its date, as to supply the defect of descrip-tlon *n the recognisance by reference to the record.

The demurrer presented nothing but the recognisance an([ the scire facias. The recognisance being insufficient, the demurrer ought to have been sustained.

Wherefore-, the judgment of the circuit court is reversed, and the case remanded with instructions to sustain the demurrer,„