Case 28 — Proceeding by the Commonwealth against Zachariah Phillips and His Surety on a Forfeited Bail Bond.

Oct.

#### Commonwealth v. Philllips.

APPEAL FROM BOYD CIRCUIT COURT.

Proceeding Dismissed and Commonwealth Appeals.

Affirmed.

Bail Bond — Felonx-^-Taken by Sheriff — Defendant not Having Been Before Magistrate — Validity.

Held: 1. Under Criminal Code, section. 27, providing that a magistrate in is'suing a warrant of .arrest shall describe the offense, and direct the officer to bring the person before a magistrate, to> be dealt with according to the law; and section 28, declaring that if the offense be' a misdemeanor, the magistrate issuing the warrant shall indorse thereon the amount of bail; and section 29, providing that if defendant give bail “as provided in the last section,” the officer taking it shall fix the day of defendant's ap*330pearance; and section 33, providing that the officer who has) executed the warrant of arresb shall make return on it, and deliver it to the magistrate before whom defendant is brought, or, if bail be given as provided by section 28, shall 'deliver the -warrant and bail bond to the officer before whom defendant is bound by the bond to appear for an examination; and section) 74, -providing-that before conviction defendant may be admitted to bail for his appearance before a magistrate for an examination if the offense be a misdemeanor, ,or for his appelaranee* in court tot which he is sent for trial — a person charged with a felbny may not be admitted to bail before being brought before a magistrate, and, though 'the magistrate .issuing the 'warrant charging a fetony indorse bail on it, a hond accepted by the sheriff is void.

C. .T. PRATT, ATTOENE5T GENERAL, AND M. R. TODD, FOR APPELLANT.

The material question in the case is as to the sufficiency of the bail bond. It has been held by this court that “it is essential to the validity of a recognizance or bail bond that it appear that the defendant was, when recognized or bailed, legally in; custody,, charged with a public offense, and was discharged therefrom by reason of giving the bond or recognizance and that it loan be ascertained from the bond or recognizance that the bail undertook that the defendant should appear before a magistrate' for an examination of the charge or -before a court for the trial thereof.” Henry v. Com., 4 Bush, 427; Com. v. Cummins, 18 B. Mon., 26.

It is also provided in section 85, Criminal Code that: “No bail bond or bail or recognizances shall be) deemed to- 'be invalid by reason of any variance between its stipulations 'and the1 provisions of this Code, nor by failure of the magistrate or officer to transmit or deliver the same, at the times herein provided, nor by any .other irregularity, provided it be made to appear that the defendant was legally in custody, charged with -a -public offense, and that he was discharged by reason of the giving of the bond or recognizance, and provided that it can be ascertained from the bond or recognizance, that the bail 'undertook that the defendant should appear before a magistrate for the examination of the charge, or before a court for the trial thereof.”

The bond refers to the warrant of arresit, and says “to answer! the charge in the within warrant.” The warrant and the -return thereon should therefore be read in connection with this warrant; and in that way the bond shows that Phillips was legally in custody; it shows that he was charged with a public offense, namely, the offense named in the warrant; that the bail -undertook that the defendant should appear before the police judge at Catlettsburg on the 1st of September, 1902, to .answer said *331charge named in the warrant. Hence, we conclude that the lowef court was in error in sustaining a demurrer to. the warrant, in quashing the same and in discharging said) James Hatcher from his liability thereon. We therefore respectfully ask that the judgment .below be reversed, with directions to render a judg'ment on said bond in favor of the 'Commonwealth against the said surety.

AUTHORITIES CITED.

98 Ky., 593; 75 Ky., 84; 11 R., 401; 8 Bush, 463; Code, secs. 27, 28, 29-33, 71, 46, 47, 48-85; 4 Bush, 427; 18 B. Mon., 26.

L. T. EiVERETT, attorney fob afi’ehees.

On the 28th day of July, 1902, J. H. McConnell, judge of the Callettsburg police court, issued a warrant charging Zaehariah Phillips with obtaining money under false pretense.. Said warrant was directed and sent to the sheriff of Pike county for! execution. At the time of issuing the warrant the said police judge made the following endorsement thereon;, “Defendants may give bond for their appearance to answer the above charge in the sum of $300.” The sheriff of Pike county arrested said Phillips under said warrant and took-bond for his. appearance before said McConnell, police judge of the city of Catlettsburg with James Hatcher as surety and returned the warrant and bond to said police judge. Phillips did not appear before said police judge and he thereupon made the following endorsement on one corner of the warrant, viz.: “Forfeited. J. H. McConnell, P. J., C. C.,” and ini this condition the warrant was transmitted to the circuit court and there the said forfeiture is attempted to' be enforced. I respectfully submit that siuch proceeding is not only unauthorized by law, but is absolutely] void anid should no,t he tolerated.

In the first place the police judge had absolutely no authority to fix bail at the time of issuing the warrant, the charge being a felony. By reference to section 28, Criminal Code, it will be seen that only in misdemeanor cases can bail be endorsed by the police judge when issuing the warrant. The warrant in this «ase as well as all other warrants ijn felony cases requires the arresting officer to bring the defendant before the police judge, and until that is done no hail can be allowed and no one save the court is allowed to take bond. In this easel it is not and can not he claimed that the police judge ever had the defendant before him, or held an examining trial, or that he ever made the slightest record of any proceedings relative thereto), land hence had no power or authority to fix .bail.

*332Tlie case of Morgan, &c., v. The Commonwealth, 12 Bush, 84, seems conclusive of this matter. Quoting therefrom:'' “It is indispensable to the validity of the bail bond taken by, or in pursuance of an examining] ciourt that some judgment be entered, or memorandum made in writing, signed by the magistrate or justice, showing that an examining court was held and that the accused was admitted to bail.” Quoting further: “It is indisipensable that the decision of the examining court, requiring the accused to give bail, shall be filed in the trial court at least before there is a forfeiture of the bail biond.”

In the case at bar ¡no examining trial was ever had, no bail ever fixed, and no record ever transmitted toi the circuit court, except the warrant, and this we contend is not -siufficient. Then, <too, the forfeiture should have been taken in the circuit court and mot in the police court: the latter court has ¡no1 power to« take the forfeiture, but must transmit his records toi the trial court where all other steps must be taken.

It will also be observed from the record that when the indictment was returned it was not against Zachar|ah Phillips, hut •against J. C. and W. P. Phillips. It seems that the style of the prosecution was changed and subsequently the entire prosecution was dismissed. I submit that under the proceedings in this case it would be a great injustice, as well as unlawful, to require Mr. Hatcher to pay $300 as surety herein.

¡Wherefore an affirmance is respectfully asked.

Opinion of the court by

JUDGE NUNN

Affirming.

It appears from the record that on the 28th of July, 1902,. J. H. McConnell was police judge of the city of Catlettsburg, Boyd county, Ky.; that on that day he issued a warrant of arrest, directed to the sheriff of Pike county Ky., charging Phillips with a felony, to-wit, obtaining money by false pretenses, and representations; that the offense was committed in the city of Gatlettsburg, and directing the sheriff to arrest him, and bring him to his office in Catlettsburg to answer the charge. The police judge made this indorsement on the warrant: “Defendant may give bond for his appearance to answer the within charge in the sum of $300. J. H. McConnell, P. J. C. C.” The sheriff of Pike county arrested Phillips, and took his bond, with James *333.Hatcher as surety. The bond is as follows: “We acknowledge ourselyes bound to the Commonwealth of Kentucky i.n the sum of |300 that Zachariah Phillips will appear in the Catlettsburg police court on the 1st day of September,. 1902, to answer the charge in the within warrant. This the 8th day of August, 1902. Z. W. Phillips. James Hatcher.” Phillips failed to appear at the time stated in' the bond, and the police judge indorsed the word “Forfeited” thereon, and returned the bond to the circuit court clerk's office. The circuit court directed a summons to be issued thereon against James Hatcher, who appeared and demurred to the proceeding against him. The court sustained his demurrer and dismissed the proceeding against him, and the Commonwealth has appealed.

The only question to determine is whether or not the police judge had the legal right to indorse bail on this warrant, and whether or not the sheriff had the right to accept bail by yirtufe of such an indorsement. Under section 27 of the-Criminal Code a magistrate in issuing a warrant of arrest shall, in brief, describe the offense, state the county in which it was committed, and command the officer to whom it w-as directed to arrest the person named therein, and bring him before some magistrate of the county in which the offense was -committed, to be dealt with according to the law. This section requires that the person arrested .be brought before the court, but, as modified by the next section, it is left applicable alone to felonies. The next section (No. 28) declares that, if the offense charged be a misdemeanor, the magistrate issuing the warrant shall indorse thereon, the amount of bail to be given by the person charged, and that the bail may be taken by the sheriff of the county where the arrest is made or where the offense was. committed. This bond may also’be taken by a deputy sheriff, or by any constable making the arrest. By the next *334succeeding section it is stated if the defendant give bail for his appearance before the magistrate for an examination of the charge as provided in the last section, the officer taking the bail shall fix the day of the defendant’s appearance, etc. This. section confines bail given for the appearance before the magistrate for an examination to one charged with a misdemeanor, and excludes the idea that one charged with a felony can give bail for his appearance before a magistrate. By section 33 it is provided that the officer who has executed the warrant of arrest shall make return on the warrant of the time and manner of executing it, and deliver the warrant to the magistrate before whom the defendant is brought, or, if bail be given as provided by section 28, shall deliver the warrant and bail bond to the officer before whom the defendant is bound by the bail bond to appear for án examination of the charge. By the foregoing sections it is made clear that a person charged with a felony can not be admitted to bail before being brought before a magistrate. In further support of this conclusion reference is made to section *7i*of the Criminal Code, which provides: “Before conviction, the defendant may be admitted to bail — 1st for his appearance before a magistrate for an examination of the charge, if the offence charged be a misdemeanor; or, 2d, for his appearance in the court to which he is sent for trial (meaning after the magistrate has held the examining trial, etc.)” From these provisions of the Code we are of the opinion that the police judge had no legal authority to indorse bail on the warrant ■of arrest, and the indorsement of bail did not authorize the ¡sheriff to accept the bond. Their acts in this matter being unauthorized and illegal, therefore the bond was void, and the surety, Hatcher, was not bound thereon, and the lower court was right in sustaining the demurrer.

Wherefore the judgment is affirmed.