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arresting a person under a warrant or other process, in which it appears
that the person is to be admitted to bail in a specified sum, may take the
bail and discharge the person from actual custody (a). The sheriff shall
be officially responsible for the sufficiency of bail taken by himself or
his deputy, as in taking bail in civil actions.

(a) The sheriff arresting a person by authority of his bail is not authorized to take new
bail : he can only take bail when he has made the arrest under a warrant or other process
in which it appears that the person is to be admitted to bail in a specified sum. 3 Met., 409.

§ 84 [79]. What peace officers may take bail. Only the following peace
officers shall take bail :

1. A sheriff or his deputy as authorized by law.

2. The coroner of any county in which the office of sheriff is vacant
may take bail, whenever the sheriff could have done so; and he shall be
officially responsible for the sufficiency of bail taken by him, in the same
manner as sheriffs are.

§ 85 [80]. Irregularities not to im>alidate bond. Duty of defendant
when bond defective as to time for appearance. No bail-bond or bail
recognizance shall be deemed to be invalid by reason of any variance
between its stipulations and the provisions of this Code, nor by the
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 offence, and that he was discharged by reason of the giving of
the bond or recognizance, and provided 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. If no day be fixed for such appearance, or
an impossible day, or a day in vacation, the bond or recognizance, if for
his appearance before a magistrate, shall be considered as binding the
defendant so to appear and surrender himself into custody, for an exam-

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i nation of the charge, within twenty days from the time the bond or
recognizance was given ; and if for his appearance in a court for trial,
shall be considered as binding the defendant so to appear and surrender
himself into custody, on the first day of the next term of the court,
-which shall commence more than ten days after the time when the bond
or recognizance is given.

1. A joint recognizance for the defendant's appearance to answer to an indictment for
burglary and an indictment for grand larceny, both charges relating to the same acts of the
defendant, was held to be valid.

As in such case there could be but one conviction and one- punishment, the two indict-
ments are, in effect, no more than two counts in the same indictment. 2 Duv., 78.

2. A defendant who voluntarily appears in court, on the return of an indictment, is in
legal custody of the court, and a recognizance entered into by his sureties, whilst he was
in such custody, is valid. 2 Duv., 78.

3. Where a bail-bond bore this indorsement: "W. M. King signed this bond in my
presence, on the date above; it was left at the grocery of Mr. J. R. Covington to get
security; it was returned to me by Mr. Covington with the names of these six persons
subscribed as surety ; " it was held that the indorsement showed that the bond was taken
by an unauthorized person, and that it was void. 3 Bush, 478.

4. Where a blank sheet of paper was signed and left with the committing magistrate,
with authority to him to fill it up as a bail-bond, and it was afterwards filled up, not by
him, but by the county attorney, it was held to be void, 6 Bush, 291.

5. A bond taken by an unauthorized officer is void under the statute and at the common
law. 3 Met., 409, 477; I Duv., 199; 2 Id., 376.

And a bond taken by officers authorized to take bail-bonds, but under circumstances
which did not authorize the taking of a bail-bond, was held to be void ; as, a bond taken
by two justices during adjournment of examination. 3 Met., 477.

6. The fact that an indictment was defective and liable to be quashed does not render
a recognizance void. 3 Bush, 19.

7. An indictment against A having been abated by the Commonwealth's Attorney under
the mistaken impression that the defendant was dead, and having been afterwards reinstated
and the defendant arrested and bailed: held, that the abatement terminated the prosecu-
tion and the bond was void. 4 Bush, 429.

8. For decisions as to irregularity of form, see note to g 82.


Surrender of tlte defendant.

g 86. Bail may surrender defendant, or defendant may surrender himself, and have

bond discharged,
g 87. How bail may arrest defendant or have him arrested,
g SS. Money deposited in lieu of bail to be returned on surrender of defendant.

§ 86 [81]. Upon surrender of defendant bail discharged. At any time
before the forfeiture of their bond, the bail may surrender the defendant,
or the defendant may surrender himself, to the jailer of the county in
which the prosecution is pending, but the surrender must be accom-
panied with a certified copy of the bail-bond to be delivered to the


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jailer, who must detain the defendant in custody thereon as upon a com-
mitment, and give a written acknowledgment of the surrender ; and the
bail shall thereupon be exonerated.

Before the forfeiture of their bond, the bail may surrender the defendant to the jailer,
whose duty it will be to detain him in custody "as upon a commitment." He mar
then be admitted to bail in the mode prescribed by % 68 and 81 of the Criminal Code,
3 Met., 409.

§ 87 [82]. Bail may arrest defendant, or have /dm arrested. For the
purpose of surrendering the defendant the bail, at any time before judg-
ment against them, and at any place within the State, may arrest him;
or, by an indorsement upon a certified copy of the bail-bond or recog-
nizance, signed by them, may direct the arrest to be made by any peace
officer in the State, or by any other person over twenty-one years of age
designated in the indorsement.

Bail can not authorize the arrest of the defendant by a third person in any other manner
than by his written indorsement on a certified copy of the bail-bond or recognizance. 8
Bush, 22.

§ 88. Money deposited in lieu of bail to be returned, on surrender of
defendant. If money have been deposited in lieu of bail, the defendant,
at any time before the forfeiture thereof, may surrender himself to the
jailer of the county in which the prosecution is pending, and procure
from him a certificate of such surrender, and upon the production of
such certificate, together with proof that the attorney for the Common-
wealth has been served with a copy of the certificate and notice, of five
days, that the application would be made ; the court in which the prose-
cution is pending, or the judge thereof, must order the money to be
returned to the person who deposited it.


Deposit of Money in Lieu of Bail.

I 89. Defendant admitted to bail may deposit money in lieu thereof.

$ 90. Deposit may be made, after bail has been taken, and the bail exonerated.

J 91. Money deposited in lieu of bail must be held subject to the order of the court.

\ 92. Money deposited may be applied to payment of fine and costs.

§ 89 [84]. Money may be deposited in lieu of bail. Whenever the
defendant is admitted to bail in a specified sum, he may deposit said
sum with the trustee of the jury fund of the county in which the trial
is directed to be had, and take from the trustee a certificate of such
deposit, upon delivering which to the officer in whose custody he is,
he shall be discharged.

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Where money was deposited with the committing magistrate in lieu of bail and the
defendant thereupon discharged, and the money, after some days, was paid by the magis-
trate to the trustee of the jury fund: held, that in so doing he acted as the agent of the
party making the deposit, and that upon defendant's failure to appear the money was'
properly forfeited to the Commonwealth. I Busk, 20.

§ 9° PS]- Upon deposit, after bail given, bail discharged. After bail
has been taken, a deposit may, in like manner, be made of the sum
mentioned in the bail-bond, which shall exonerate the bail.

§ 9 1 [86]- To be held by trustee of jury fund. If money be deposited,
the trustee of the jury fund shall hold and pay the same according to
the orders of the court having jurisdiction to try the offence, and he and
his sureties shall be liable for the same on his official bond.

§ 9 2 [87]- Court may. apply it in discharge of fine and costs. Upon
judgment being rendered against a defendant for a fine or costs, the
court rendering judgment may order any money deposited, agreeably
to the foregoing sections, to be applied to the payment thereof.


Forfeiture of Bail.

J 93. How bail-bond, or money deposited in lieu of bail, is forfeited.

| 94. Proceedings upon forfeiture.

§ 95. Commonwealth may sue out attachment upon forfeited bail-bond.

§ 96. Court may discharge for forfeiture during same term.

I 97. Money deposited, and forfeited, to be credited to jury fund.

§ 98. Before judgment court may remit whole, or part, of bond.

§ 93 [88]. Forfeiture of bail-bond, or money deposited. If the defend-
ant fail to appear for trial or judgment, or at any other time when his
presence in court may be lawfully required, or to surrender himself in
execution of the judgment, the court must direct the fact to be entered
on the record, and thereupon the bail-bond, or the money deposited in
lieu of bail, is forfeited.

§ 94 [90,91,92]. 1. Proceedings upon forfeiture. Upon the forfeiture
of a bail-bond the court shall order a summons to be issued against the
bail, requiring them to show cause, upon the first day of the next term
of the court, why judgment should not be rendered against them, on
the forfeiture, for the sum fixed in the bail-bond.

2. If the court fail to make such order, the attorney for the Com-
monwealth may, at any time after the close of the term, cause such
summons to be issued by the clerk of the court.

3. No pleadings shall be required on the part of the Commonwealth,
but the summons shall be served, and all subsequent proceedings shall
be the same, as in an ordinary civil action.

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§ 95. Attachment upon forfeited bail-bond. When the sheriff or other
officer shall return the summons, issued under § 94, not executed, in
whole or in part, and that the defendants, or any of them, are non-
residents of this Commonwealth, or so conceal themselves or himself
that the summons can not be executed upon them or him, the attorney
for the Commonwealth may sue out an attachment against the estate of
the defendants as to whom such return shall have been made, and pro-
ceed as provided in Title VIII, chapter 3, of the Civil Code, except no
affidavit nor bond shall be required : or he may in any case, after forfeit-
ure, sue out an attachment for any of the causes enumerated in said
chapter by making affidavit and executing bond as required therein.

§ 96 [89]. Court may disc/iarge forfeiture at same term. If, before the
final adjournment of the court, the defendant appear and satisfactorily
excuse the failure, the court may discharge the forfeiture.

§ 97 [93]- Money deposited, and forfeited, to be credited to jury fund. If
money be deposited in lieu of bail, after forfeiture and final adjournment
of court, the trustee shall enter the sum deposited to the credit of the
jury fund.

§ 98 [94]. Before judgment court may remit whole, or part, of bond. If,
before judgment is entered against the bail, the defendant be surrendered
or arrested, the court may, at its discretion, remit the whole or part of
the sum specified in the bail-bond.


1. Forfeiture.

2. Proceedings.

3. Discharge.

4. Remission.

i. Forfeiture.

(1) Where a defendant in a criminal case had appeared in discharge of each of several
recognizances, and another is executed and he fails to appear in discharge of it, an order
reciting the failure of the defendant "to appear in discharge of his recognizance," and
declaring the same forfeited, sufficiently refers to the recognizance last executed, it being
the only one then in force or obligatory upon the bail. 3 Afet., 415.

(2) Failure to forfeit the bond at the appearance term operates to extend the time for
surrender of the principal by the surety. I Bush, 59.

(3) That the defendant was absent in the Federal army at the time he was bound by a
recognizance to appear in court to answer an indictment, and was unable to procure a fur-
lough to attend the court, was a valid defence against the recognizance ; and, though the
defendant was not a competent witness in behalf of his sureties, his statement under oath
might be heard upon the motion to remit the forfeiture. 2 Duit., 383.

(4) The omission in the order of forfeiture to name the sureties, or to give the date of
the recognizance, is not a fatal defect, where the recognizance is otherwise sufficiently
identified. 3 Met., 415; 1 Duv., 14.

2. Proceedings.

(1) A summons which recites the date and amount of the recognizance, and, by refer-
ence to the recognizance, sufficiently identifies the offence, is sufficient. 2 Duv., 78.

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(2) The appearance of the parties to a motion to set aside a judgment of forfeiture, and
their agreement to set the hearing of it for a specified day, and a trial and judgment on the
merits waived previous irregularities. 2 Duv., 387.

(3) In a proceeding against bail on a forfeited recognizance, pleadings on the part of
the Commonwealth are dispensed with. The office of the summons is simply to notify the
bail that there has been a forfeiture of the bond and that the Commonwealth is proceeding
to enforce it. The failure to state in the summons the amount specified in the bond is im-
material. In this case the recognizance was entered into in the circuit court. 3 Met,, 415.

(4) In an action upon a forfeited recognizance, the defendant must make a written state-
ment of the facts constituting his defence. Without this, the mere exhibition to the court
of the evidence relied on by him, either to defeat or suspend the action, will be disregarded;
and in such case the production of the respite of the Governor, not relied on by pleading,
constitutes no defence to the action. The court is not authorized to take any judicial notice
of the paper presented in that way. 4 Met., 221.

(5) A defendant indicted for felony, whose recognizance had been forfeited, surrendered
himself to the court before a judgment was entered against the bail, who thereupon moved
to dismiss the proceeding upon the forfeited bond: this, though not a formal, was a sub-
stantial application for remission, and the sustaining of the motion by the- court must be
deemed to have been an exercise of the discretion vested in the judge by §98 of the Code.
2 Met., 382.

(6) The Code does not authorize the defendant in an indictment to enter into a bail-bond
or recognizance; and such a bond or recognizance can not be enforced against him by the
statutory remedies, if at all. 2 Duv., 9.

(7) Though, if the Commonwealth, by her own act, prevent an appearance in discharge
of a recognizance, she certainly should not enforce the penalty for non-appearance; the
answer of the surety, averring that his principal "was necessarily prevented from appear-
ing in said court on said day (the day named in the recognizance), because he was then,
on said day, in the custody and control of the law of this State, and legally confined, by
legal process, in jail at Carroll county, Kentucky, upon a charge of felony, where he yet
is," was held to be insufficient, because it failed to show that the Commonwealth had pre-
vented the appearance of the principal. 1 Bush, 113.

(8) Fear of mob-violence is no excuse for failure of the accused to appear, unless proper
authorities were applied to and failed to give protection. 79 Ky., 582.

3. Discharge.

(1) In Com. v. Overby, 80 Ky., 208, the court, overruling Com. v. House, 13 Bush, 68o,
held that in a bail-bond there is an implied undertaking by the Commonwealth that the
bail shall not be prevented from surrendering the defendant by any authority within the
limits of the State; and, consequently, that an arrest of the defendant by the United States,
on a criminal charge, exonerates the bail. And an arrest of the defendant by a marshal
of the United States, in 1866, was held to be an exoneration of the bail. 1 Bush, 616.
And so as to detention of the defendant as a soldier in the Federal army. 2 Duv., 383.
But the arrest and detention of the defendant in another Slate, for a crime committed there,
do not exonerate the bail. 1 Bush, 17; 89 Ky., 151.

(2) Sureties in a bail-bond are discharged by the re-arrest of the accused and his com-
mitment to jail from which he made his escape during the pendency of a second examining
trial for the same offence. 11 Bush, 605.

(3) Though the rule is otherwise as to misdemeanor cases (1 Duv., 177, 275) ; the escape
of the defendant after the trial for a felony commences discharges his bail, without show-
ing that there was an order of the court taking charge and control of him. I Duv., 275,
overruling dictum in Com. v. Coleman, 2 Met,, 382. But the trial does not commence until
the issue is formed and the jury sworn. 85 Ky., 68.

(4) A release of the defendant upon a writ of habeas corpus by a judge having jurisdic-
tion, though improper, discharges the bail. 14 B. M., 361 ; 91 Ay., 588.

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(5) Pending a proceeding on a forfeited recognizance, by summons in the circuit court,
on motion of the defendant, who was surety in the recognizance, the court quashed the
indictment, and forthwith rendered judgment for execution for the amount of the adjudged
forfeiture. By quashing the indictment, the pending prosecution was closed; but the
recognizance did not thereby become functus officio, and the judgment of forfeiture was
not thereby stifled. The quashal of the indictment did not bar a continuance or renewed
prosecution for the same offence; nor did it deprive the surety in the bail-bond of his right
to surrender or arrest the accused, and put him in the custody of the court, subject to trial
under such prosecution, and thus bring himself within the 98th section of the Criminal
Code. 3 Bush, 22.

(6) The accused being under bond in the sum of $500 for his appearance, and having
failed to appear, a bench warrant issued with an indorsement allowing bail in the sum of
$250: held, that these facts did not release the sureties in the bail-bond. 1 Bush, 59.

(7) For discharge of bail by failure to indict, see {117 and notes.
4. Remission.

(1) Section 98 merely confers a judicial discretion and power upon the court to render
judgment in an action on a bail-bond for such part of the penalty of the bond as may be
just and proper, after hearing proof of defendant's facts in defence, not a power to remit a
fine or forfeiture in the sense in which those terms are used in the Constitution, and is
therefore no infringement of the rights of the executive department, and is not unconsti-
tutional. This discretion is to be exercised judicially upon consideration of the facts relied
upon in the defence, and is not an arbitrary and uncontrollable discretion. 1 Id,, 380;
2/</., 384; 4/d., 225.

(2) Under J 98 the court has power to remit the penalty of a bail-bond, although a
judgment had been rendered upon the bond, which was set aside on the same day, and the
remission then made. 3 Met., 2.

(3) After judgment is entered against bail the court has no power to remit the forfeit-
ure. 2 Duv., 9.

(4) The fact that the defendant had either been surrendered ox arrested must be alleged
and shown in the defence before the court can remit. 4 Met., 225.

(5) The discretion of the inferior court in remitting the penalty of a bail-bond will not
be controlled by the Court of Appeals unless flagrantly abused. 1 Bush, 133; 2 Met., 382;
4 Met., 225; 89 A>., 156.

(6) The Governor may remit the whole forfeiture, including the commissions of the
attorney for the Commonwealth, at any time before a valid judgment against the bail (18
B, M., 512; 2 Duv., 385) ; and according to Com, v. OffuU, 82 Ky., 326, he can do so at
any time before the money is collected on the judgment.

(7) That the Governor remitted not the forfeiture, but the judgment itself except as to
11 fees and costs," furnished no ground for setting aside the judgment so in part remitted.
4 Met, 221.

Recommitment after Giving Bail or Depositing Money,

{ 99. In what cases defendant on bail may be rearrested.

§ 100. In what cases defendant may give bail after such rearrest.

§ 99 [96]- Rearrest of defendant on bail. The court in which a prose-
cution for a public offence is pending, shall, by an order, direct the
defendant to be arrested and committed to jail until legally discharged,

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2 9

after he has given bail or deposited money in lieu thereof, in the follow-
ing cases :

1. When, by having failed to appear, a forfeiture of bail, or of the
money deposited, has been incurred.

2. When the court is satisfied that his bail, or either of them, is dead,
or insufficient, or has removed from the State.

3. Upon an indictment being found for an offence not bailable.

§ 100 [97]. Bail after rearrest. Upon such order being made, the
clerk shall issue process for the arrest and recommitment of the defend-
ant. If the order be made in either of the cases mentioned in the 1st
or 2d subdivisions of the preceding section, the defendant shall be admit-
ted to bail as upon his first commitment, in a sum to be fixed by the
court, and named in the process for his arrest.



Chap. i. Grand Jury, its powers and duties.

2. Indictment.

3. Process on an indictment.

4. Production of evidence.

5. Arraignment and pleadings by the defendant.

6. Trial.

7. New trial and arrest of judgment.

8. Bills of exception.

9. Judgment.
10. Execution.

Grand Jury, its Powers and Duties.

$ 101. Selection, summoning, and empanneling of grand jury.

J 102. What the grand jury must investigate, and whom they must indict.

\ 103. Entitled to free access to prisons and public records.

2 104. Grand juror must give information of public offences.

J 105. Subpoenas for witnesses, before grand jury, to be issued by clerk.

J 106. Foreman may administer oaths.

J 107. What evidence grand jury shall receive.

\ 108. How witnesses compelled to testify before grand jury.

2 109. Grand jury may have advice of court and attorney for Commonwealth.

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% no. Who may be present with grand jury during examination.

2 ill. When grand jury should find an indictment.

2 H2. Proceedings of grand jury to be kept secret.

2 113. What a grand juror may be required to disclose.

2 114. Grand juror not responsible for his acts or votes, except for perjury.

2 115. All papers, &c, relating to persons committed, or on bail, to be laid before grand

jury, and acted upon.
2 116. Court may direct a charge to be reconsidered, after dismissal by grand jury.
2 117. Defendant to be discharged if no indictment found at second term, unless the

court order otherwise.

§ 10 1 [98.] Formation of grand jury. The selecting, summoning, and
empanneling of a grand jury shall be as prescribed in the General Stat-

1. Under the Constitution of 1891 an indictment found by a grand jury consisting of
more than twelve persons is void. 92 Ky., 605.

2. The summoning of bystanders to serve as grand jurors, when properly ordered, is a
duty in the performance of which the accused in a criminal case is entitled to the services
of the sheriff, or coroner where there is no sheriff. If summoned by one specially appointed
by the court, the indictment may be quashed. It is a substantial error. 4 Met., 223.

3. Section 193 of the Criminal Code, which authorizes the court, for sufficient cause, to

Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 121 of 142)