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bail,
g 67. Order of commitment.
I 68. Who may take bail after commitment.
J 69. Witnesses to be recognized.

g 70. Disposition of the papers, &c, relating to the examining trial.
§71. Proceedings when defendant charged with felony is brought before a justice of the

peace.

§ 49 [46]. Magistrate may examine charge. A magistrate of the
county in which a public offence has been committed, is authorized to
examine the charge, and commit to jail or hold to bail the person
charged with its commission, except as provided in § 71.

Judges of county courts, of city or police courts, mayors, chairmen of trustees of
towns, and justices of the peace are magistrates (§ 26) ; and under the Code of 1877 any
of them might commit or hold to bail, except that, in cases of felony, if the committing
magistrate was a justice of the peace he must associate with him another justice (§71).
18 B. M. t 26; 3 Met. y 314; 3 Busk, 14. But see the act of 1886, appended to \ 71.

§ 5° [47]- Magistrate to commence examination forthwith. When a
person who has been arrested, shall be brought, or, in pursuance of a
bail-bond, shall come before a magistrate of the county in which the
offence is charged to have been committed, the charge shall be forth-
with examined as directed in this title.

[An Act requiring judges and examining courts in certain cases to exclude
from the court-room all infants under sixteen years of age.
1. That it shall be the duty of all judges and examining courts,
during the progress of all trials for rape, attempted rape, seduction,



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14 PROCEEDINGS IN THE EXAMINING COURT. [TITLE IV.

unlawfully detaining a woman, and similar offences, and in all civil trials
for slander, seduction, or breach of promise of marriage, to exclude
from the court-room, and from the hearing of the testimony and argu-
ments, all infants under the age of sixteen years, except such as may
be witnesses in the case, or of kin to one of the parties. (Act 0/1892,
S. A., 84.)]

§ 51 [47]. Magistrate to state tlie charge, and, in felonies, to notify
county attorney. The magistrate, before commencing the examination,
shall state the charge, and inquire of the defendant whether he desires
the aid of counsel, and shall allow a reasonable opportunity for procuring
it. He shall also, if the offence charged be a felony, give to the county
attorney, if not present, reasonable notice in writing, of not more than
one day, to attend and prosecute such charge. The notice may be
served by any sheriff, constable, or marshal, and it shall be the duty of
such officer to serve the same when placed in his hands.

§ 52. Defendant may object to the magistrate. If a defendant shall
make and present his affidavit that he does not believe that he can
secure a fair trial, and examination, before the judge, officer, or justices
constituting the court, he or they shall retire from the case, and another
or other magistrates shall take his or their places ; but where only one
of the two justices is objected to, he only shall retire from the case, and
another justice shall take his place. When a judge or justice has retired
from the case, by reason of the filing of the affidavit as provided above,
and his place has been supplied by another judge or justice, no affidavit
can be filed nor objection made, by the party first objecting, to parties
then constituting the court.

§ 53. Proceedings wften such objection is made. When the affidavit
provided for In § 52 is filed, and there is but one magistrate; or if there
be two and the objection apply to both ; if the defendant be in custody,
the peace officer, having him in custody, shall take him before some
other magistrate to be- examined. If the defendant be on bail, the
examination shall be continued, and the peace officer in attendance
shall notify another magistrate to attend and preside in the case. If
the examination be before two justices of the peace, and the objection
apply to but one of them, the other shall associate another justice with
himself and proceed as directed in § 71.

§ 54 [48]. Examination may be adjourned for cause. For the purpose
of procuring the attendance of witnesses, or for other sufficient reasons,
the magistrate may adjourn the examination from time to time, not,
however, exceeding two days at a time.

§ 55 [49]- Disposition of defendant during adjoumtnent During the
periods of adjournment the defendant shall be committed to jail, or to



I



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TITLE IV.] PROCEEDINGS IN THE EXAMINING COURT.



the custody of a peace officer ; but if the offence be a misdemeanor, the
defendant may give bail, or the magistrate may fix a sum equivalent to
bail, upon which being deposited with the peace officer in attendance,
unless he be a policeman, as security for the defendant's appearance at
the time or times appointed, he shall be released from custody during
the periods of the adjournment of the examination (a).

[During the periods of adjournment the defendant may give bail
when the offence with which he is charged is a bailable one. The court
may, in bailable cases, fix a sum equivalent to bail, and if the defendant,
or any one for him, deposit money to the amount named with the
magistrate in attendance, unless he be a policeman, as security for the
defendant's appearance at the time or times appointed, he shall be
released from custody during the periods of the adjournment of the
examination ; but if the defendant fail to give bail, or to deposit money
as indicated herein, or if the offence is not a bailable one, he shall,
during such adjournment, be confined in the county jail : Provided, That
said defendant may be committed to the custody of an officer if he will
pay the expense of being guarded. {Act of February 6, 1882.)]

(a) I. Under the Code of 1877, an examining court had no right, during the progress
of the examination, to admit to bail or release from custody a person charged with felony.
3 Met., 477.

2. Writs or bail-bonds issued or taken on Sunday are valid. 3 Bush, 16; 5 Bush, 309.

§ 56 [50]. Directions concerning money deposited in lieu of bail. The
magistrate shall make an entry, on the minutes of the examination, of
the deposit and by whom made ; and, if the defendant appear at the
times appointed for his appearance, or at such other times to which the
magistrate may extend the time for his appearance, or die during an
adjournment, the money shall be returned by the peace officer to the
person depositing it, or his representatives ; but if the defendant fail to
appear, the peace officer shall, within ten days after such failure, pay
over the money to the trustee of the jury fund of the county.

§ 57 [S 1 ]* P eace officer responsible for money deposited in Hat of bail.
The peace officer shall be responsible on his official bond for the money
deposited as provided in the last two sections.

§ 58 [65]. Forfeiture of bail-bond given during examination. If the
defendant give bail for his appearance during the examination according
to § 55, and fail to appear at the time specified, or at the time extended
according to § 59, the magistrate shall indorse on the bail-bond the word
44 forfeited," with his signature thereto, and return the bond to the clerk
of the circuit court of the county, who shall proceed thereon as directed
in § 94, and such indorsement shall be sufficient evidence of the for-
feiture of the bond.



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l6 PROCEEDINGS IN THE EXAMINING COURT. [TITLE IV.

§ 59 [52]. Magistrate tnay extend time for defendant's appearance.
When a deposit of money has been made, or bail given, the magistrate
may, for sufficient cause, extend the time for the appearance of the
defendant, not exceeding, however, ten days.

§ 60 [53]. How t/ie sunt to be deposited in lieu of bail is determined.
The sum of money to be deposited, as provided in the preceding sec-
tions, shall not be less than the full amount in which bail would be
required, upon the defendant's being held for trial of the charge.

§ 61 [54]. Magistrate must issue subpoenas and coerce the attendance of
witnesses. The magistrate shall, when requested to do so, issue subpoenas
for witnesses, which shall be executed by a peace officer, and shall coerce
their attendance by the same process as in the circuit courts.

§ 62 [55]. Witnesses may be separated. During the examination the
magistrate may cause the witnesses to be kept out of hearing of the
witness testifying, and also separate from each other; and he shall do so
upon the request of the prosecuting attorney, or of the defendant.

§ 63 [56]. Spectators may be excluded. Upon the request of the de-
fendant, all persons may be excluded from the room in which the exami-
nation is made, except the magistrate, his clerk, the peace officer, the
prosecutor, the attorney or attorneys representing the Commonwealth,
the prisoner, his counsel, and the witness under examination.

§ 64 [57]. Substance of testimony to be written by magistrate. The
magistrate in the minutes of the examination shall state the name and
place of residence of each witness examined, and the substance of his
testimony. But such statement shall not of itself be evidence for any
purpose.

§ 65 [58]. If cliarge not proven defendant to be discharged. When the
examination is closed, if the magistrate be of opinion that there is not
sufficient cause for believing that the defendant has committed a public
offence, he shall discharge the defendant from custody, and make an
entry thereof on the minutes.

§ 66 [59]. If an offence proven defendant to be held for tried) and com-
mitted or discharged on bail. If, however, the magistrate be of opinion
from the examination, that there are reasonable grounds to believe the
defendant guilty of the offence charged, he shall be held for trial, and
committed to jail, or discharged on bail, if the offence be bailable: Pro-
vided, however, That if, upon the trial, it shall appear that the defendant
is guilty of a public offence, other than that charged in the warrant, he
Shall be held in custody of the officer and tried for such offence, a
reasonable opportunity having been given him to obtain his witnesses
and prepare his defence.

§ 67 [60]. Order of commitment. If the defendant be committed to



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TITLE IV.] PROCEEDINGS IN THE EXAMINING COURT. IJ

jail, the magistrate shall make out a written order of commitment,
signed by him, which shall be delivered to the jailer by the peace officer
who executes the order of commitment. If the offence be bailable, the
magistrate must fix the sum for which bail is to be given, and if suffi-
cient bail be offered, take the same and discharge the defendant. If,
however, sufficient bail be not offered, the sum in which bail is required
must be stated in the order of commitment.

§ 68 [61]. Who may take bail after commitment. The defendant, after
commitment, and before the commencement of the next term of the
court having jurisdiction to try the offence, may be admitted to bail, in
the sum fixed by the committing magistrate, by such committing magis-
trate or by the judge of the county court ; but after the commencement
of the term of the court, can only be admitted to bail by the court or
the judge thereof. After the term, if the amount of the bail have been
fixed, the bail may be taken by the clerk of the court in which the
defendant is held to appear.

1. A statute providing that the city court of Lexington "as to committing criminal
offenders, and sending them on for trial, shall have the powers of two justices of the peace
of Fayette county," does not authorize the clerk of that court to take a bail-bond.
6 Bush, 305.

2. The court having at the first term after the commitment of the accused fixed his
bail, a bail-bond taken by the county judge after the adjournment of the court was held to
be void. It should have been taken by the clerk. 2 Bush, 3.

But the court having adjourned without fixing the amount of bail, it was held that two
justices, the prisoner having been brought before them on habeas corpus, had power to fix
the amount of bail and take bond (see \ 423). 5 Bush, 312.

3. But the clerk can not take bail unless the court has previously made an order allow-
ing bail, and fixing the amount. 3 Bush, 68.

4. See Act of 1893, appended to £ 28, as to bail in misdemeanor cases.

§ 69 [62, 64]. Witnesses to be recognized. On holding the defendant
to answer the charge, the magistrate shall cause each of the material
witnesses on behalf of the Commonwealth; and at the defendant's
request, each of such of the witnesses for him as he may suggest, to
enter into a recognizance before him, to the effect that he will attend and
testify in the court to which the defendant is sent for trial, or forfeit a
sum, not less than one hundred dollars, to the Commonwealth of Ken-
tucky. If witnesses for the defendant be recognized, it shall be stated
in the recognizance that they are such.

§ 70 [63]. Magistrate to deliver minutes, &c. t to proper officer. The
magistrate shall within ten days, and before the commencement of the
next term of the court to which the defendant is sent for trial, deliver to
the clerk of such court the warrant, if any, the minutes of the exam-
ination, including the statements of the witnesses, the instruments of



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1 8 PROCEEDINGS IN THE EXAMINING COURT. [title it.



writing and other things used in evidence, the decision and action of
the magistrate, the bail-bond, if any, and the recognizances of the
witnesses.

The provisions of this section and of §§ 72 and 73 not having been complied with, a
bail-bond, though in regular form, was held to be invalid. 12 Bush, 84.

§ 7 1 [66]- How single justice to proceed in felony case. If the magis-
trate before whom the defendant is brought, for an examination of the
charge against him, be a justice of the peace, and the offence charged
be a felony, he shall proceed with such defendant to another justice of
the county, who shall be associated with him, and the two compose the
examining court, and perform the duties and exercise the powers as
provided in this title, subject to the following rules :

1. If they do not concur in the opinion that there are reasonable
grounds for believing the defendant to be guilty of a public offence, he
shall be discharged.

2. If they concur in the opinion that there are reasonable grounds
for believing him to be guilty of a public offence, but differ as to the
offence of which he is guilty, he shall be held for trial for the offence
for which the least punishment is prescribed.

3. If they differ as to the sum in which the defendant should be held
to bail, he shall be held in the smaller sum.

4. If they differ in the decision of any other question, the decision
most favorable to the defendant shall prevail.

5. The justice before whom the defendant is first brought shall de-
liver the papers to the clerk, as prescribed in § 70, and the other justice
shall write down the evidence, unless they otherwise agree (a).

[An act to provide for and regulate the holding of examining courts in this
Commonwealth, and fixing the fees of the county judges, justices of the
peace and police judges, and otlier officers when sitting in examining
courts.

1. That the judges of the county courts, in their respective counties,
shall have as an examining court exclusive jurisdiction in all cases of
homicide.

2. The examining trial for the offence in the first section of this act
mentioned, shall be held at the county seat of the county in which the
offence is alleged to have been committed.

3. When any person is arrested, charged with homicide, he shall be
carried before the county judge, if in the county, for an examining trial.
If the county judge is absent from the county, or can not properly pre-
side in the case, the party arrested shall, by the officer or person having
him in charge, be carried to the justice of the peace living nearest to



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CHAP. I.] ADMISSION TO BAIL. 19

the county seat for an examining trial, or to the police judge of the
town which is the county seat for an examining trial. If the justice of
the peace is absent from his district or police judge is absent from the
town, or either of them can not properly preside, then any other justice
of the peace may act as an examining court in the trial of the person
arrested.

4. One justice of the peace shall have all the rights, powers, and
jurisdiction now conferred by law on two justices of the peace as an
examining court, provided said justice shall have no jurisdiction to act
as an examining court in case of homicide, unless the party charged
with said offence is brought before him pursuant to § 3 of this act.

5. This act shall not be construed as limiting the jurisdiction of the
county judge as an examining court to the offence of homicide. (Act
of April 19, 1886.)]

(a) 1. See note to J 49.

2. The term " larceny" does not, under the Code, necessarily import "felony" (§§ 5,
6, 7), and where it appeared that a bail-bond was taken by a single justice, it will be pre-
sumed that the case was one of petty larceny, and that the bond was valid. 3 Met., 411.

3. A single justice has no power to require or receive bail from one brought before
him charged with a felony, and such a bond is not good for any purpose. 2 Duv. % 376;
II Bush, 219.



TITLE V.

BAIL.



Chap. i. Admission to bail

lt 2. Surrender of the defendant.

1 1 3. Deposit of money in lieu of bail.

" 4. Forfeiture of bail.

" 5 . Recommitment after giving bail and depositing money.

CHAPTER I.

Admission to bail.

\ 72. Admission to bail defined.

\ 73. Of what the taking of bail consists.

\ 74. Admission to bail before conviction.

\ 75. No bail allowed after conviction.

J 76. Qualifications of bail.

\ 77. Proof of the qualifications of bail.

§ 78. Insufficient bail not to be taken.



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20 ADMISSION TO BAIL. [TITLE v.

£ 79. Persons offered as bail may be accepted if sufficient in the aggregate.
$ 80. Attorneys, sheriffs, clerks, judges, and master commissioners, not to be taken as baiL
% 81. How application for bail must be made.
$ 82. Form of bail-bond.
\ 83. When sheriff may take bail.
§ 84. What peace officers may take bail.

I 85. Irregularities not to invalidate bail-bond, if sufficient in substance. Duty of defend-
ant when bond is defective as to time of appearance.

§ 72 \6f\. Admission to bail defined. Admission to bail is an order
(a), from a competent court or magistrate (b) t that the defendant be dis-
charged from actual custody on bail.

(a) As to what is an "order," see 12 Bush f 87, 88.
{b) As to who are magistrates, see § 26.

§ 73 [68]. Of what taking of bail consists. The taking of bail con-
sists in the Acceptance by a competent court, magistrate, or officer (a),
of the undertaking of sufficient bail for the appearance of the defendant
according to the terms of the undertaking, or that the bail will pay to
the Commonwealth the specified sum.

{a) Bail-bonds may be taken by a sheriff or his deputy ($ 28, 83, 84, 143, 144); or, if the
office of sheriff be vacant, by a coroner (J 84); and in some cases by a clerk (J 68); but not
by a jailer. 1 Duv. t 199.

§ 74 [70]. Admission to bail before conviction. Before conviction, the
defendant may be admitted to bail —

i. For his appearance before a magistrate for an examination of the
charge, if the offence charged be a misdemeanor; or,

2. For his appearance in the court to which he is sent for trial ;

3. For his appearance to answer an indictment, which has been found
against him ; or,

4. For his appearance in a penal action.

§ 75 [7 1 ]- No bail allowed after conviction. After conviction, the de-
fendant can not be admitted to bail.

§ 76 [72]. Qualifications of bail. The bail shall be residents of the
Commonwealth (a), owners of visible property, over and above that
exempt from execution, to the value of the sum in which bail is required,
and shall be worth that amount after the payment of their debts and
liabilities.

{a) If a non-resident be accepted as bail he will be bound. 2 Duv. % 385.

§ 77 [73]- Proof of qualifications of bail. The person or persons
offered as bail shall be examined on oath in regard to their qualifica-
tions as bail, and any officer authorized to take bail is authorized to
administer the oath, reduce the statements on oath to writing, and re-



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CHAP. I.] ADMISSION TO BAIL. 21

quire the person offered as bail to sign the statement. Other proof
may be also taken in regard to the sufficiency of the bail.

§ 78 [74]. Insufficient bail not to be taken. No person shall be taken
as bail, unless the court, magistrate, or officer be satisfied, from proof
and examination on oath, of the sufficiency of such person, according
to the requisitions of the preceding sections.

§ 79 [75]' Bwl *° be taken if sufficient in the aggregate. If more than
one person be offered as bail, they shall be deemed sufficient, if in the
aggregate they possess the qualifications required.

§ 80. Judge y attorney, sheriff, clerk, or commissioner not to be taken as
bail. No officer shall take as bail any attorney at law, sheriff or deputy
sheriff, judge, clerk or deputy clerk, or master commissioner, of the court
in which the defendant is held to appear.

Persons mentioned in this section who execute bail-bonds are bound thereby. 11
Bush, 617.

§ 81 \j6\ How application for bail made. If the defendant be com-
mitted to jail, and the application for bail be made to a magistrate or
judge of the circuit court during vacation, it must be by a written peti-
tion, signed by the defendant or his counsel, briefly stating the offence
for which he is committed, and naming the persons offered as bail. In
all other cases, the application may be made orally to the court, magis-
trate, or officer.

§ 82 [j7\ Form of bail-bond. The undertaking of the bail (a) shall
be substantially as follows :

"A B, being in custody, charged with the offence of (naming or

briefly describing it) (b), and being admitted to bail in the sum of

dollars, we, C D, of (stating his place of residence), and E F (stating his
place of residence), hereby undertake that the above named A B shall

appear in the court day of its term (c) (or before the

judge of the county court, on the day of ) to answer said

charge, and shall at all times render himself amenable (d) to the orders
and process of said court in the prosecution of said charge; and, if con-
victed, shall render himself in execution thereof (e) ; or, if he fail to
perform either of these conditions, that we will pay to the Common-
wealth of Kentucky the sum of dollars" (/).

(a) A bail-bond or recognizance by defendant in an indictment is a nullity, though it
maybe binding on the surety. 2 Duv., 9.

(6) I. A bond which does not state the charge to be answered by the defendant is void.
4 Bus A, 427.

2. Where the minutes of the examining court recited, only, that the defendant and his
sureties "were duly recognized in the sum of two hundred dollars, conditioned as the law
directs:" held, that the recognizance was insufficient. The conditions should have been
set out in it. 7 Bush, 431.



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22 ADMISSION TO BAIL, [TITLE v.



(c) Where bail-bond was conditioned for the appearance of the defendant at the ensuing
May term and no court was held in May : held, that the sureties in the bond were bound
for the appearance of their principal at the next ensuing term of the court. I Busk, 59.

(d) An undertaking that the defendant "will render himself obedient to the orders and
process of this court," is equivalent to an undertaking, that he shall "at all times render
himself amenable" &c. 1 Duv. % 14.

(e) A bond stipulating that the defendant "will perform the judgment in the action"
is void. I Met., 389; 13 Bush, 195.

(/) 1. Omission of this stipulation was held to be immaterial. I Duv., 18; 9 Bush, 552.

2. If it appear that the defendant was legally in custody, that he was discharged by the
giving of the bond, and it can be ascertained from the bond that the bail undertook that
the defendant should appear before a court for trial, the bond will be valid though it do
not strictly conform to the provisions of this section. 18 B. A/., 26.

§ 83 [78]. When sheriff may take bail. A sheriff or deputy sheriff



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 120 of 142)