October 1, 2012

Commonwealth v. Delk, Pulaski, 1916

Commonwealth v. Delk.

COURT OF APPEALS OF KENTUCKY

171 Ky. 263; 188 S.W. 376; 1916 Ky. LEXIS 342

September 28, 1916, Decided

PRIOR HISTORY:  [***1]  Appeal from Pulaski Circuit Court. 

DISPOSITION: Judgment reversed, with directions.

COUNSEL: W. N. FLIPPIN, Commonwealth's Attorney 28th Judicial District, and M. M. LOGAN, Attorney General, for appellant. 

JUDGES: JUDGE CARROLL. 

OPINION BY: CARROLL 

OPINION
 [*263]   [**376]  OPINION OF THE COURT BY JUDGE CARROLL--Reversing.

This appeal is prosecuted from the following order of the Pulaski circuit court:

"This day this cause came on for trial and the defendant being under bond in the sum of $ 100.00 for his appearance with W. H. Warren and W. C. Pike as his sureties, and having been called and failing to answer, the attorney for the Commonwealth moved the court that the bond of the defendant be forfeited and that summons issue against said sureties returnable to the next term of this court to show why judgment could not be rendered against them upon said forfeiture, and the court being advised, overruled said motion, to which ruling of the court the Commonwealth excepts and prays an appeal to the Court of Appeals, which is granted."

The criminal code, in section 93, provides that "If the defendant fail to appear for trial or judgment, or at any other time when his presence in court may be lawfully required,  [***2]  or to surrender himself in execution of the judgment, the court must direct the fact to be  [*264]  entered on the record, and thereupon the bail bond, or the money deposited in lieu of bail, is forfeited."

Under this section of the code when the defendant, who is under bond for his appearance, fails to appear when the cause comes on for trial, it is the duty of the court, on motion of the attorney for the Commonwealth, to have entered on the record the fact of the failure to appear and to have entered an order forfeiting the bail bond, and thereupon summons should issue against the bail as provided in section 94 of the criminal code. Why the court refused, under the circumstances shown in the order, to forfeit the bond and direct the issual of summons against the sureties, does not appear, but on the showing made by the record before us the action of the circuit court in overruling the motions made by the attorney for the Commonwealth was error.

Wherefore, the judgment appealed from is reversed, with directions to the lower court to proceed in conformity with the provisions of the code indicated.

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