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Civil and Criminal codes of practice of Kentucky online

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[or, any day of the same term], to answer the indictment for felony [or, misdemeanor],
found in said court against him; and shall not depart without leave of the court.

Examination of the Bail on Oath,
(Section 77.)

John Jones being sworn and examined as to his qualification as bail, states that he is t
resident of Franklin county, Kentucky; that he is the owner of one hundred acres of land
in Franklin county, the title of which is complete and unencumbered, and worth, as he be-
lieves, three thousand dollars; also, of personal property on said land subject to execution,
worth two thousand dollars; that he does not owe more than fifteen hundred dollars; nor
is he bound as security for more than one thousand dollars ; and that he believes he is
worth, over the payment of his debts and liabilities, at least two thousand dollars.

July 20, 1877. John Jones.

Sworn to before me as sheriff of Franklin county. W. T. Herndon, S. F. C

Bond taken in Police, or Magistrate's, Court for Appearance in same Court,

Justices* Court of Franklin County [or, Frankfort Police Court].
A. B. being in custody, charged with the offence of assault and battery, and being admitted

to bail in the sum of dollars: We, C. D. and E. F., of Franklin county, hereby

undertake that the above named A. B. will appear before the court of G. H., a justice of the
peace for Franklin county [or, in the Franklin Police Court], on the 15th day of July, 1877,
to answer said charge, and will at all times render himself amenable to the orders and pro-
cess of said court in the prosecution of said charge ; and, if convicted, will surrender him*



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FORMS UNDER CRIMINAL CODE — BAIL. 143

self in execution thereof; or, if he shall fail to perform either of these conditions, that
*we will pay to the Commonwealth of Kentucky the sum of ... . dollars.

Witness our hands, this 10th day of July, 1877. C. D.

E. F.
Taken and subscribed before me as justice of the peace for Franklin county [or, judge
of the Frankfort Police Court, this 10th day of July, 1877.

G. H., J. P. F. C. [or, J. F. P. C]



MONEY DEPOSITED IN LIEU OF BAIL.

Entry on the Minutes of the Examining Court of Money Deposited in Lieu of Bail,

(Section 56.)
The defendant, John Smith, deposited in the hands of W. T. Herndon, sheriff of
Franklin county, six hundred dollars in lieu of bail for his appearance before the court for
an examination of the charge of his having permitted unlawful gaming in a house of which
he was owner, and for his rendering himself amenable to the orders and process of this court
in the prosecution of said charge, and for his rendering himself in execution, if convicted.

Entry in Examining Court of the Forfeiture of Money Deposited in Lieu of Bail.

(Section 56.)
The defendant, John Smith, having failed to appear in court on this day, to which the
examination of the charge against him had been adjourned, it is ordered that the money
deposited by him with the sheriff of Franklin county in lieu of bail be forfeited, and be
paid over to the trustee of the jury fund.

Certificate by Trustee of the Jury Fund of Money Deposited in Lieu of Bail.
(Section 89.)
I, P. Swigert, trustee of the jury fund of Franklin county, do certify that John Smith,
who is in custody on the charge of larceny, and allowed to give bail in the sum of one
thousand dollars for his appearing in the Franklin circuit court, on the first day of its next
October term, and rendering himself amenable to the orders and process of said court in
the prosecution of said charge, and, if convicted, rendering himself in execution thereof,
has deposited in my hands one thousand dollars in lieu of bail.

Given under my hand, this 5th August, 1877. P. Swigert, C. F. C. C.

Notice to Attorney for Commonwealth of Application, for Return of Money Deposited in Lieu

of Bail.
(Section 88.)
To A. B., Eso. t Attorney for the Commomvealth for Franklin County:

You are hereby notified that C. D., having deposited with the trustee of the jury fund
for Franklin county the sum of dollars, in lieu of bail, and having surrendered him-
self to the jailer of Franklin county, and procured from him a certificate of such surrender,
a copy of which certificate is served herewith, will, on the 20th day of August, 1877, make
application to the Franklin circuit court [or, to the judge of the Franklin circuit court) for
the return to him of the said sum of dollars deposited as aforesaid. C. D.



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144 FORMS UNDER CRIMINAL CODE EXAMINING COURT.



PROCEEDINGS IN EXAMINING COURT.

Minutes of Examining' Court.

Commonwealth of Kentucky \ Franklin County, August io> 1877.

against V

John Smith. J

The defendant, John Smith, having been brought before me, the judge of the Franklin
county court, charged with the offence of larceny, and being informed of the nature of the
charge against him, moved an adjournment of examination until the 12th day of this month,
to procure the aid of counsel and the attendance of witnesses, which motion was sustained ;
and, in the meantime, he is committed to the jail of Franklin county (or, to the custody
of the sheriff of Franklin county].

(If the offence be a misdemeanor, and the defendant desires to give bail, or deposit
money in lieu of bail, an entry of the fact should be made on the minutes.)

August 12, 1877.

The court met pursuant to adjournment, and the defendant was brought from jail. De-
fendant filed his affidavit, stating that he did not believe he could secure a fair trial before
J. C. Herndon, judge of the Franklin county court, the presiding magistrate in this case,
and thereupon the said J. C. Herndon retired from, the case, and John Parker and A. B.
Williams, justices of the peace for Franklin county, having been duly notified, appeared for
the purpose of presiding in the case.

The parties being ready, the defendant moved that the witnesses be examined sepa-
rately: whereupon, all the witnesses, except the one under examination, were removed
out of hearing of the witness under examination.

John Jones was appointed by me to act as clerk in writing down the testimony of the
witnesses.

Thomas Cox being sworn, and examined on behalf of the Commonwealth, testified:
[Here should follow the testimony of the witnesses.]

The court having heard the evidence and the arguments of counsel, and being satisfied
that there are not sufficient grounds to believe that the defendant is guilty of the offence
charged, or any other offence, it is ordered that he be discharged. Or,

The court having heard the evidence and the arguments of counsel, and being satisfied
that there are sufficient grounds to believe the defendant is guilty of the offence charged, it
is ordered that he be held for trial in the Franklin circuit court, and allowed to give bail,

in the sum of dollars; and not giving bail, he is committed to the jail of Franklin

county.

The witnesses on behalf of the Commonwealth, A. B. and C. D., and the witnesses on
behalf of the defendant, E. F. and G. H., entered into recognizances for their appearance
in the Franklin circuit court. The warrant of arrest (the bail bond) and recognizances of
the witnesses accompany these minutes. John C Hrrndon, J. F. C. C.

(If a magistrate be objected to and retire from the case, the magistrate taking his place
should sign the minutes.)



COMMITMENT.

Order of Commitment during the Adjournment of the Examining Court.
(Section 55.)
The Commonwealth of Kentucky to the Jailer of Franklin County:

You are commanded to receive John Smith into the jail of Franklin county, and him
safely keep until the I2th day of August, 1877, when you will deliver him to the sheriff.



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FORMS UNDER CRIMINAL CODE — INDICTMENTS. 14$

ar other peace officer, of Franklin county, to be brought again before me, for an examin*
ition of the charge of larceny, for which he is in custody.

Given under my hand as judge of the Franklin county court, this loth day of August,
1877. John C. Herndon, J. P. F. C.

Order of Commitment for Trial.
(Section 67.)
The Commonwealth of Kentucky to the Jailer of Franklin County:

You are commanded to receive into the jail of Franklin county John Smith, and him
safely keep until discharged by due course of law, he having been held by me, as an examin-
ing court, for trial in the Franklin circuit court, on the charge of larceny, and allowed to
give bail in the sum of ... . dollars, for default of which he is committed to jail.

Given under my hand as judge of the Franklin county court, this 12th day of August,
1877. John C. Herndon, J. F. C. C.



INDICTMENTS.

I. INDICTMENTS FOR COMMON LAW FELONIES.

1. Arson.

The Commonwealth of Kentucky \ Franklin Circuit Court.

against \



The grand jury of Franklin county, in the name and by the authority of the Common-
wealth of Kentucky, accuse of the crime of* arson, committed as follows*

viz. : The said , on the .... day of , in the county aforesaid

[or, if there has been a change of venue — in county], did feloniously (a) and willfully

set fire to and burn the dwelling-house of [or — a house occupied by

as a residence (b)], against the peace and dignity of the Commonwealth of

Kentucky.

(a) As to the necessity of using the word " feloniously " in every indictment for a com-
mon law felony, see note II, ante, p. 35.
(£) See 12 Bush y 243.

2. Burglary.
[Adopt last foregoing Form prior to asterisk, and add] burglary, committed as follows,

viz.: The said , on the .... day of , , in the night-time, in the

county aforesaid, feloniously and burglariously (a) broke into and entered the dwelling-
house of , . . . ., with the intent to steal goods and chattels therefrom, against the

peace and dignity of the Commonwealth of Kentucky.

(a) Sec 5 Bush, 376, in which the court, whilst saying that the word "burglariously"
is "a word of art and technically necessary in charging the offence' 1 of burglary, held
that, under the Code, the omission of it was immaterial ; according to which reasoning it
seems that the omission of the word "feloniously" would also be immaterial, though the
use of it as to all common law felonies has been held necessary in the cases cited in note
II, ante, p. 35.

3. Grand Larceny.
[Adopt Form t, above, prior to the asterisk \ and add] grand larceny, committed as follows,
viz.: The said , on the .... day of , in the county aforesaid,



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I46 FORMS UNDER CRIMINAL CODE — INDICTMENTS.

fraudulently and feloniously took and carried away a hog of the value of four [ar—oi more

than four] dollars [or — a horse], the property of [or, if tht owner be unburn—

of a person whose name is unknown by the grand jury], against the peace and dignity of
the Commonwealth of Kentucky.

Larceny is a common law felony, with a distinction between grand and petit larceny;
the former applying to property worth over twelve pennies, and the latter to property worth
twelve pennies or less; the former being punished with loss of life and lands, and the latter
with the forfeiture of goods and whipping or other corporal punishment {Baton** Abridge-
ment, Title Felony ; Letter F). Chapter 39, art. 11, of the General Statutes, as amended
by an act of March 20, 1876, made the "stealing" of a horse, mule, jack, or jennet, or of
a hog of the value of four dollars or more, or the " larceny" of other property of the value
of ten dollars or more, a felony; and made the *' stealing" of a hog of less value than four
dollars, and the " larceny" of other property of less value than ten dollars, a misdemeanor.*

The statute does not define either *« larceny " or "stealing." Whether or not it would
be sufficient, in an indictment for stealing a horse, mule, jack or jennet, or a hog worth
four dollars, to follow the language of the statute and aver merely that the accused "stole"
the property, has not been decided. But an indictment which averred that the accused
"feloniously took and carried away" a horse was held to be sufficient (13 Busk, 337) and
it seems clear that the addition of the word " fraudulently" would not have made the in-
dictment defective; and that the common law rule of pleading applies to indictments for
larceny of all other property than a horse, mule, jack, jennet, or hog. See SS Ay., 349.

4. Manslaughter.

[Adopt Form 1, p. 145, prior to the asterisk, and add] manslaughter, committed as follows,

viz.: The said , on the .... day of , , in the county aforesaid,

did feloniously and willfully kill , by stabbing him with a knife, against the

peace and dignity of the Commonwealth of Kentucky.

5. Murder (with a weapon).

[Adopt Form I, p. 145, prior to the asterisk, and add] murder, committed as follows, viz.:

The said , on the .... day of , , in the county aforesaid, did

feloniously, and with malice aforethought, kill and murder , by shooting hira

with a pistol [or — by striking him with an axe — stating the weapon and how it was used accord-
ing to the facts (a)] [or — in the county aforesaid, did, feloniously and with malice afore-
thought, kill and murder , by shooting and wounding him with a pistol, on

the .... day of , . . . . , whereby he died on the .... day of , . . . . , stating a time

within a year and a day after the wounding (£)], against the peace and dignity of the Com-
monwealth of Kentucky.

{a) See note I, ante, page 35.
{6) See 13 Bush, 719.

6. Murder (by poisoning).

[Adopt Form 1, p. 145, prior to the asterisk and add] murder, committed as follows, vix^

The said , on the .... day of , , in the county aforesaid, did,

feloniously and with malice aforethought, kill and murder , by administering

to her a deadly, corrosive, and destructive poison, called strychnine, against the peace and
dignity of the Commonwealth of Kentucky.

See fane v. Com., 3 Met., 18.

* Those provisions are substantially the same as those of an act of 1893 (S. A. f 774, 786), except that,
under the latter, the property must be worth twenty dollars or more, instead of ten dollars or more, to attic
larceny of it a felony. As said act makes no mention of the General Statutes, is the attempted chaafc
valid under g 51 of the Constitution f



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FORMS UNDER CRIMINAL CODE — INDICTMENTS. 1 47

7. Perjury {a).
[Adopt Form I, p. 145, prior to the asterisk, and add] perjury, committed as follows, viz.:

rhe said ,011 the day of , in the county aforesaid, having

»een duly sworn in the Franklin circuit court [by the judge (or — the clerk) thereof, who
tad authority to administer such oath (£)], to testify the truth as a witness on the trial in
aid. court of A. B., under an indictment for murdering C. D., did willfully, falsely, and
eloniously, and against the peace and dignity of the Commonwealth of Kentucky, testify
hat be had seen [inserting the statements alleged to be false], though he had not seen [nega-
'xtriptg those statements by special averments (c)~\ [and the said testimony being material in said
case (</)].

(a) See note 41, ante, page 41.

\t>) Though \ 134 seems impliedly to require these bracketed averments, perhaps the aver-
ment that the witness was duly sworn in the circuit court is sufficient, as it certainly would
be in an indictment for false swearing. See 2 Met., 10; 11 Bush, 172; 92 Ky., 457.

<*) See 83 Ky., 277; 91 Ky., 133 ; 92 Id., 458.

(d) This averment is unnecessary if the facts stated in the indictment show that the
testimony was material. 91 Ky., 133.

8. Rape.
[Adopt Form I, p. 145, prior to the asterisk, and add"} rape, committed as follows, viz.:
The said , on the .... day of , in the county aforesaid, unlaw-
fully, feloniously, and violently made an asault upon , and then and there,

forcibly, and against her will and consent, ravished and had carnal knowledge of her,
against the peace and dignity of the Commonwealth of Kentucky.

See 12 Bush, 18.

9. Robbery.
[Adopt Form 1, p. 145, prior to the asterisk, and add] robbery, committed as follows, viz.:
The said , on the .... day of , in the county aforesaid, feloni-
ously took a gold watch, the property of , from his person [or — in his presence,

as the fact maybe], and against his will, by putting him in fear of some immediate injury to
his person, against the peace and dignity of the Commonwealth of Kentucky.

See 1 Duv., 150.

II. INDICTMENTS FOR STATUTORY FELONIES.
I. Attempt at Arson.
[Adopt Form I, p. 145, prior to the asterisk, and add] an attempt at arson, committed as

follows, viz.: The said , on the day of , , in the county

aforesaid, did, willfully and feloniously, attempt to set fi re to the dwelling-house of

, against the peace and dignity of the Commonwealth of Kentucky.

See Young v. Com., 12 Bush, 243, in which ** willfully and feloniously" were held to
be equivalent to the statutory words ** willfully, maliciously, and unlawfully;" and see
note (2), ante, p. 36, for several similar decisions ; and J 136, on which most of them were
founded; all which, with the foregoing Form, are suggested in order to show that depart-
ure from statutory language in describing a statutory offence is not always fatal, and not
for the purpose of commending such a departure ; for use of the statutory language is
never improper, and is often, though not always sufficient, and is sometimes necessary.
See notes (1), (3), and (4), ante, pp. 35, 36.

2. Bigamy.
[Adopt Form I, p. 145, prior to the asterisk, and add] bigamy, committed as follows, viz.:
The said on the .... day of , in the county aforesaid, having



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14$ FORMS UNDER CRIMINAL CODB — INDICTMENTS.



a wife then living, whom he married in the State of , on the .... day of ,

, and whose name was when he married her, unlawfully married

, against the peace and dignity of the Commonwealth of Kentucky.

See Davis v. Com., 13 Bush y 318, in which the indictment, though it followed the lan-
guage of the statute, was held to be insufficient because it failed to state when and where
the defendant's first marriage took place, and the name of his alleged first wife; aad set
note (4), ante, p. 36, for reference to several similar decisions.

3. Counterfeiting Coin.
[Adopt Form I, p. 145, prior to the asterisk , ana* add] counterfeiting, committed as follows,

viz.: The said , on the .... day of , , in the county aforesaid,

did counterfeit a gold coin of the United States, known as a half eagle, which was them
passing as current money in the Commonwealth of Kentucky, with intent to defraud,
against the peace and dignity of the Commonwealth of Kentucky.

4. Cutting Down a Corner Tree.
[Adopt Form 1, p. 145, prior to the asterisk, and add] cutting down a corner tree, com-
mitted as follows, viz.': The said , on the . . . ; day of , , in the

county aforesaid, did fraudulently and willfully cut down a black oak, a corner tree to the

survey of a tract of land owned by , and adjoining the tract of land of

, against the peace and dignity of the Commonwealth of Kentucky.

5. Destroying (or Concealing) a Will.
[Adopt Form I, p. 145, prior to the asterisk, and add] destroying [or — concealing] a will,

committed as follows, viz.: The said , on the ... . day of , , in

the county aforesaid, fraudulently destroyed [or— concealed] the last will and testament

of devising legally his real and personal estate, with intent to prevent the

probate thereof, against the peace and dignity of the Commonwealth of Kentucky.

6. Detaining a Woman against her Will.
[Adopt Form 1, p. 145, prior to the asterisk, and add] detaining a woman against her

will, committed as follows, viz.: The said , on the .... day of , . . . .,

in the county aforesaid, unlawfully detained , against her will, with intent

to have carnal knowledge with her, against the peace and dignity of the Commonwealth of
Kentucky.

See Wilder v. Com., 81 Ay., 591, in which the indictment was held to be insufficient,

because, instead of using the statutory words, " unlawfully detained , against

her will," &c, it averred that he " unlawfully and forcibly detained," &c. And see note
<(3) y ante, p. 36, for several similar decisions.

7. Embezzlement.
[Adopt Form I, p. 145, prior to the asterisk, and add] embezzlement, committed as fol-
lows, viz.: On the .... day of , , in the county aforesaid, certain (a) money

[or — United States currency — or — bank notes], the property of the Farmers' Bank of Ken-
tucky, at Frankfort, a banking corporation created by the laws of Kentucky, and which it

had intrusted to said , who was a servant in its employment, to be by him

deposited to the credit of A. B., in the Bank of Kentucky, in said town, was by said

fraudulently converted to his own use, against the peace and dignity of the Com-
monwealth of Kentucky.

(a) An indictment for the embezzlement of money, United States currency or bank
notes, need not "specify the coin, number, denomination or kind thereof." $135. Bat
an indictment which makes such description must be sustained by proof. 16 B. M., 206.



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FORMS UNDER CRIMINAL CODE — INDICTMENTS. I49



8. False Personation,

[Adopt Form 1, p. 145, prior to the asterisk, and add] false personation, committed as

follows, viz.: The said , on the .... day of , , in the county

aforesaid, falsely and fraudulently represented himself to be ..... * , and, in such

assumed character, married , against the peace and dignity of the Common-
wealth of Kentucky.

9. False Swearing (a).

[Adopt Form 1, ante, p. 145, prior to the asterisk, and add] false swearing, committed as

follows, viz.: The said , on the .... day of , , in the county

aforesaid, though he had promised to pay the claim (0) on which a judgment had been ren-
dered against him by the Franklin circuit court in favor of A. B., made an affidavit in
'writing and swore to it before a deputy clerk of said court (r), in which he willfully,
knowingly, and falsely stated that he had never promised to pay said claim, against the
peace and dignity of the Commonwealth of Kentucky.

[Or — committed as follows, viz.: The said , on the .... day of , ,

in the county aforesaid, having been duly sworn in the Franklin circuit court (c ) to testify
Che truth as a witness upon the trial of A. B. under an indictment for violation of his
tav«rn-bond, and having seen a game of cards played in said A. B.'s tavern-house between

the .... day of , , and the .... day of , in which money was

bet, and won, and lost, and knowing that said A. B. had knowledge or information of said
game (&), willfully, knowingly, and falsely testified that he did not, between the dates last
aforesaid, see any games or game of cards played in said house in which money was bet, or
won, or lost, when said A. B. was present, or of which said A. B. had any knowledge or
information so far as said knew, against the peace and dignity of the Com-
monwealth of Kentucky.]

(a) I. See note 41, ante, p. 41.

2. As to the 1st Form under this head, see 2 Met., 10, and as to the 2d, see 83 Ky., 27$.

(£) As to traversing the statements alleged to be false, see 83 Ky., 277; 91 Id., 133;
92 Id., 458.

(c) An indictment which avers that the oath was made before an officer having general
authority to administer oaths need not aver that he had authority to do so, the burden
being on the defendant to show want of authority; but it is otherwise as to oaths admin-
istered by persons not having such general authority. See 2 Met., 10; 11 Bush, 169; 89
Ky., 174; 92 Id., 457.

IO. Forgery, or Uttering a Forged Writing.
(1) Forging a note or order for money.

[Adopt Form I, p. 145, prior to the asterisk, and add] forgery, committed as follows, viz.:
The said , on the .... day of , , in the county aforesaid, with-
out authority from, or the consent or knowledge of, A. B., wrote and signed said A. B.'s

name to a paper purporting to be a promissory note, dated the .... day of , ,

whereby said A. B. promised to pay to said , four months after said date,

dollars, with intent to defraud [or — any person from whom said

might be able to obtain money on said paper], against the peace and dignity

of the Commonwealth of Kentucky {a).

[Or — committed as follows, viz.: The said , on the .... day of ,

, in the county aforesaid, having A. B.'s written order, dated the .... day of ,

, whereby C. D. was directed to pay 75 cents to said , did, without

authority from, or the consent or knowledge of, said A. B., write on said order, immedi-
ately before the figures "75," a dollar-mark and the figure 1, so as to make said writing an
order for $1.75 cents, with intent to defraud said C. D., against the peace and dignity of



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 136 of 142)