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Judgment if the Punishment be Confinement in the Penitentiary.

Commonwealth of Kentucky, Plaintiff, \

against v

John Smith,' Defendant. J

The defendant was this day brought into court, and being informed of the nature of the
indictment, plea, and verdict, was asked if he had any legal cause to show why judgment
should not be pronounced against him; and none being shown, it is adjudged that the
defendant be taken, by the sheriff of Franklin county, to the State penitentiary, and there
confined at hard labor for the period of four years.

Judgment for a Fine and Imprisonment,

(Section 289.)

Commonwealth of Kentucky, Plaintiff, \

against \

John Smith, Defendant. j

The jury impanneled herein returned the following verdict: •• We, of the jury, find the
defendant guilty, and affix his punishment at a fine of one thousand dollars, and confine-
ment in the county jail for six months. J. Dudley, foreman." Wherefore, it is adjudged
that the plaintiff recover of the defendant the sum of one thousand dollars, and the costs of
this prosecution, and that the defendant be confined in the jail of Franklin county for
the period of six months; and when said period of confinement shall have terminated, the
defendant shall be retained in confinement until the fine aforesaid be paid, but the period
of such confinement, for the non-payment of the fine, shall not exceed one day for each
two dollars of the fine.

Judgment of Removal from Office for Malfeasance in Office.

(Section 292.)

Commonwealth of Kentucky, Plaintiff, \

against \

John Smith, Sheriff of* Franklin County, Defendant. J

It appearing by the verdict, that the defendant has been guilty of an offence which
creates a forfeiture of his office of sheriff of Franklin county, it is adjudged that the defend-
ant be removed from his office of sheriff of Franklin ccunty, and said office is hereby
adjudged to be vacant by caid removal.

(If any other punishment be affixed to the offenoe, the judgment for that punishment
should precede the judgment of removal.



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FORMS UNDER CRIMINAL CODE — APPEALS. 1 59

APPEALS.

APPEALS TO THE COURT OF APPEALS.
Order noting Prayer for an Appeal, in Cases of Felony \ by the Defendant*
(Section 336.)
The Commonwealth of Kentucky, Plaintiff, \
against \

John Smith, Defendant. J

The defendant prayed an appeal from the judgment herein to the Court of Appeals,
which is granted, and, on motion of the defendant, it is ordered that the execution of the
judgment herein be suspended for the period of sixty days from the date of said judgment
[or until sixty days after his bill of exceptions shall be signed and made part of the record ;
if time have been given to file a bill of exceptions.]

Order noting the Prayer for an Appeal, in eases of Felony, by the Commonwealth.

(Section 337.)
The Commonwealth of Kentucky, Plaintiff, \
against \

John Smith, Defendant. J

The plaintiff prayed an appeal from the decision of court rendered herein, instructing
the jury that they should find for the defendant [reciting the decision from which the
appeal is prayed ; or, if from the final judgment, the form is the same as is given for the
defendant].

Certificate of the Appeal being taken in Cases of Felony.
(Section 336.)
John Smith, Appellant, \ Court of Appeals of Kentucky.

against >

The Commonwealth of Kentucky, Appellee. J

I, Jacob Swigert, clerk of the Court of Appeals of Kentucky, do certify that John
Smith has this day taken an appeal in the manner and form prescribed by law, from a
judgment of the Franklin circuit court, rendered at its October term, 1877, in the case of
the Commonwealth of Kentucky, plaintiff, against John Smith, defendant, for the con-
finement of the defendant in the State penitentiary at hard labor for the period of four
years; it is therefore ordered that the execution of said judgment be suspended.

Witness my hand, this 10th of October, 1877. J» Swigert, Clerk C. A.

Order granting an Appeal in Cases of Misdemeanor.
(Section 348.)
The Commonwealth of Kentucky, Plaintiff, \
against \

John Smith, Defendant. j

The defendant prayed an appeal from the judgment herein to the Court of Appeals,
which is granted, upon condition that he lori^ge in the clerk's office of said court a tran-
script of the record 111 sixty days from the date of the judgment.

[This same form may be used if the appeal be prayed by the plaintiff.]

Supersedeas Bond in Cases of Misdemeanor.
(Section 349.)
The Commonwealth of Kentucky, Plaintiff, "| Franklin Circuit Court.

against >

John Smith, Defendant. J

The defendant, John Smith, having prayed an appeal from the judgment of the Frank-
lin circuit court, rendered herein against him at its October term, 1877, for a fine of one



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l60 FORMS UNDER CRIMINAL CODE— APPEALS.

thousand dollars and costs, and imprisonment in the jail of Franklin county for six months,
now we covenant to and with the plaintiff that if said judgment be affirmed, we will pay
said fine and costs, and all damages thereon, and the costs of the appeal, and that the
defendant will surrender himself in execution of the judgment of imprisonment ; or, if he
fail to do so, that we will pay to the plaintiff two dollars for each day of the imprisonment
adjudged. Witness our hands, this 20th October, 1877. John Smith,

Thomas Jones,
George Smith.
Taken and subscribed before me, as clerk of the Franklin circuit court, this 20th day
of October, 1877. P. Swigert, C. F. G. C.

Supersedeas in Cases of Misdemeanor,
(Section 349.)
John Smith, Appellant, ") Court of Appeals of Kentucky.

against V

The Commonwealth of Kentucky, Appellee. J

I, Jacob Swigert, clerk of the Court of Appeals of Kentucky, do certify that the appel-
lant, John Smith, has taken an appeal from a judgment of the Franklin circuit court,
rendered at its October term, 1877, in favor of the Commonwealth of Kentucky against
him for a fine of one thousand dollars and costs, and for his imprisonment in the Franklin
county jail for six months, and has executed a supersedeas bond agreeably to law, a tran-
script of which, and of the record, has been filed in my office. Therefore, the execution of
said judgment is suspended.

Given under my hand, this 1st November, 1877. J- Swigert, Clerk C. A.



APPEALS TO CIRCUIT COURTS.

Appeal Bond,
(Section 364.)
John Smith, Appellant, \ Franklin Circuit Court.

against \

The Commonwealth of Kentucky, Appellee. J

John Smith having prayed an appeal to the Franklin circuit court, from the judgment
rendered, on the 15th day of August, 1877, by James C. Coleman, a justice of the peace
of Franklin county, against said appellant for a fine of one hundred dollars and costs, now
if said judgment be affirmed we covenant to pay the costs of the appeal.

Witness our hands, this 20th day of September, 1877. Thomas Jones,

George Smith.

Taken and subscribed before me, as clerk of the Franklin circuit court, this 20th day
of September, 1877. P. Swigert, C. F. C. C.

Appeal and Supersedeas Bond,
Section 364.)
John Smith, Appellant, \ Franklin Circuit Court.

against \

The Commonwealth of Kentucky, Appellee. J

John Smith having prayed an appeal to the Franklin circuit court, from the judgment
rendered, on the 15th day of August, 1877, by James C Coleman, a justice of the peace
for Franklin county, against said appellant for a fine of one hundred dollars and costs, now
if said judgment be affirmed we covenant to pay the costs of the appeal; and also that the
said John Smith will perform the judgment which shall be rendered against him on the
appeal, and if the judgment be for imprisonment, and said John Smith fail to surrender



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FORMS UNDER CRIMINAL CODE — CAPIAS PRO FINE. l6t

himself in execution thereof, that we will pay to the Commonwealth of Kentucky the sum
of two dollars for each day of imprisonment adjudged against him.

Witness our hands, this 20th day of September, 1877. Thomas Jones,

George Smith.

Taken and subscribed before me, as clerk of the Franklin circuit court, this 20th day
of September, 1877. • P. Swigert, C. F. C. C.

Supersedeas,
(Section 364.)

John Smith, Appellant, \ Franklin Circuit Court.

against Y

The Commonwealth of Kentucky, Appellee. J

I do certify that John Smith has prayed an appeal to the Franklin circuit court, from a
judgment rendered, on the 15th day of August, 1877, hy James C. Coleman, a justice of
the peace for Franklin county, against him for a fine of one hundred dollars and costs, and
lias duly executed an appeal and supersedeas bond. Therefore, the execution of said judg-
ment is suspended.

Given under my hand, as clerk of said court, this 20th day of September, 1877.

P. Swigert, C. F. C. C.

Certificate of Appeal,
(Section 364.)
John Smith, Appellant, ) Franklin Circuit Court.



.}



against
The Commonwealth of Kentucky, Appellee.

I do certify that John Smith has taken an appeal to the Franklin circuit court, from a
judgment, rendered on the 15th day of August, 1877, by James C. Coleman, justice of the
peace for Franklin county, against him for a fine of one hundred dollars and costs.

Given under my hand, as clerk of said court, this 20th day of September, 1877.

P. Swigert, C. F. C. C.



CAPIAS PRO FINE.

Execution for a Fine upon a Judgment of the Circuit Court in a Penal Prosecution,

The Commonwealth of Kentucky to the Sheriff of Mason County :

We command you to take the body of James Silvey, late of said county, if he be found
within the same, and him safely keep until he shall satisfy us one hundred dollars, which
we late in our circuit court recovered against him for a fine assessed against him for [giving
the offence as charged in the indictment], against our peace and dignity; also, the sumof ten
dollars, which to us in the same court was adjudged for our costs in that behalf; whereof
the said James Silvey is convict, as appears to us of record ; and how you shall have exe-
cuted this writ make known to our judge of our said court, at the court-house thereof, in
the city of Maysville, on the .... day of , 1877, and have then there this writ.

Witness, Samuel W. Owens, clerk of our said court, at the court-house aforesaid, this
9th dav of September, 1877. Samuel W. Owens, C. M. C. C.



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162 FORMS UNDER CRIMINAL CODE — HABEAS CORPUS.

Execution for a Fine upon a Judgment of a Justice of the Peace,
The Commonwealth of Kentucky to any Constable of Mason County :

You are commanded to take the body of Charles Bell, late of said county, and him
safely keep until he shall satisfy the said Commonwealth the sum of twenty dollars, which
the said Commonwealth recovered before me, as justice of the peace for said county, for a
fine for a breach of the peace [or other offence, as the case may be] : also, the sum of five dol-
lars, which to the said Commonwealth, before me, was adjudged for her costs in that
behalf expended ; whereof the said Charles Bell is convict, as appears to me of record ; and
.that you make due return hereof in sixty days to me at my office.
Given under my hand, this 9th day of September, 1877.

William E. Seddkn, J. P. M. C



HABEAS CORPUS.

Writ of Habeas Corpus.
(Section 402.)
The Commonwealth of Kentucky to Lewis Jackson, of the County of Mason:

We command you, that you have the body of Willis Strother, detained in your custody,
as it is said, together with the day and cause of his being taken, at the court-house of the
county in which this writ is served, before the circuit judge of said county, on Monday,
the 4th day of October, 1877, at the hour of nine o'clock of the forenoon of said day ; and
that you then and there state in writing the cause of detaining the said Willis Strother, and
produce your authority for so doing; and hereof you are not to fail, under the penalties
denounced by law against those who disobey this writ, and to submit to and receive all
those things which shall then and there be adjudged in this behalf.

Witness my hand, as police judge of the town of East Maysville, this ad day of Octo-
ber, 1877. Israel Sticknky, P. J. E. M.

Indorsement Changing the Time for Return to the Writ.

(Section 403.)

Commonwealth of Kentucky, County of Mason.

The within writ having been served this day, but at such time as renders it impossible

for Lewis Jackson to obey the same at the time therein specified, the time for said Jacksoa

to produce the body of Willis Strother, and make return to said writ, is changed from the

4th day of October, 1877, to the 6th day of October, 1877, at ten o'clock in the forenoon.

John Harris, Sheriff of Mason County.

Notice of the Change of Time for Return to the Writ, to be given to the Person on whose

Application it is Issued.

(Section 408.)
Robert Calvert, Esq. :

You are hereby notified that the time for the return to the writ of habeas corpus, issved
on your application, in behalf of Willis Strother, against Lewis Jackson, has been changed
from the 4th day of October, 1877, to the 6th day of October, 1877, at ten o'clock, A. M.,
as appears from the indorsement made by me upon said writ, of which the following is a
copy, viz.: [here copy the indorsement], John Harris, Sheriff M. C



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FORMS UNDER CRIMINAL CODE — HABEAS CORPUS. 165

Bond that the Person Detained shall not Escape, and for Payment of Costs,
(Section 404.)
A writ of habeas corpus having been applied for in behalf of Willis Strother, said to be
unlawfully detained by Lewis Jackson, we, Thomas Smith and Samuel Johnson, hereby

covenant with the Commonwealth of Kentucky, in the penal sum of $ , that said

Willis Strother shall not escape while he is being brought to the place at which he is com-
manded to be produced, by said writ, and if he so escape we will pay to the Commonwealth

of Kentucky the said sum of $ And we further agree to pay such costs and charges

as may be lawfully awarded against the said Willis Strother, upon the trial under said writ.
Witness our hands, this 2d day of October, 1877. Thomas Smith,

Samuel Johnson.
Taken and subscribed before me, as police judge of the town of East Maysville, this 2d
day of October, 1877. Israel Stickney> P. J. E. M.



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APPENDIX.



Notes concerning criminal code decisions not previously

referred to.

| ii. Jurisdiction of penal actions.

The jurisdiction of a penal action is governed by the Civil Code. Com. v. Grand
Central, 6V., Ass'n, 97 Ky., 325, 327.

i 18. Local jurisdiction of circuit courts.

This includes offences prosecuted by indictment or penal action. 97 Ky., 325, 327.

$ 25. Writ of prohibition.

See City of Owensboro v. Sparks, 99 Ky., 351, 354.

& 35, 36. Arrests.

It is illegal and unlawful to attempt to arrest and search a person for concealed deadly
weapons without a warrant ; and such person can resist the attempt even to the extent of
killing the officer if it be necessary to protect himself from death or great bodily harm.
Hughes v. Com., 19 Ky. Z. Rep,, 497.

{ 43. No unnecessary force to be used in making arrests.

This section is declaratory of the common law, and was not intended to lessen the
power of officers to preserve the peace and arrest disorderly persons. Finnell v. Bohan-
won, 19 Ky. L. Rep., 1587, 1589.

\ 49. Magistrate as examining court.

To give a magistrate jurisdiction as an examining court there must be a party in custody,
charged with an offence. Com. v. Thompson, 98 Ky., 593-94.

{ 68. When the clerk may take bail.

When the court having jurisdiction to try an offence fixes the bail, the clerk may take
the bail after the expiration of the term, even during subsequent terms of court. Wilson v.
Com., 99 Ky., 167.

I 86. Irregularities not to invalidate bail bond.

Where, on the examining trial of A, the court discharged A, and made an order that it
held B to answer, fixed his bail, and that B appeared and gave bond, it was held that the
bond was void, and the sureties were not liable; because B had not been arrested and was
therefore not "legally in custody, charged with a public offence." Com. v. Thompson, 98

A>., 593. 595-

J 89. Money deposited in lieu of bail.

See 19 Ky. L. Rep., 381.

} 97. Forfeiture of money deposited in lieu of bail.

Money deposited by one in order to secure the release of the accused becomes forfeited
on the failure of the accused to appear, and no proceeding against the person making the
deposit is necessary. Ansparger v. Norman^ 19 Ky. L. Rep., 381.

\ 1 10. Who may be present with grand jury.

The county attorney is in effect an assistant to the Commonwealth's attorney, and may
be present in the grand jury room and assist in the examination of witnesses. Utterback v.
Com., 20 Ky. L. Rep., 1 51 5.

(165)



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l66 APPENDIX.



j II3. To WHOM THE GRAND JURY MAY DISCLOSE TESTIMONY HEARD BEFORE IT.

Where the grand jury furnished the Commonwealth's attorney with a transcript of the
evidence heard by it, the defendant can not require its production at the trial. Vtser^ui \.
Corn., 20 Ky. L. Rep., 1515.

1 116. Resubmission to grand jury.

Where a grand jury failed to indict, and the defendant was indicted by a subsequent
grand jury (without the charge being submitted to it by direction of the court), the indict-
ment was quashed (Sutton v. Com., 97 Ky., 308, 313) ; but by pleading to the indictsiest,
the defendant waived the right to have it set aside. Id.

i 119. Indictment must be indorsed.

See Com. v. L. &■» N. t 17 Ky. L. Rep., 562.

i 120. Names of witnesses not on indictment.

After pleading to an indictment and going into one trial, it is too late to objm that
the names of the witnesses before the grand j'ury were not written on the indictment
Sutton v. Com., 97 Ky., 308, 314.

i 121. Filing of the indictment.

The failure of the clerk to indorse an indictment "filed," etc., does not affect :ts
validity. Pence v. Cotn., 95 Ky., 618.

I 122, subs. 2. Contents of an indictment.

If the acts named in the indictment, in law constitute the offence (i. e., a nuisance;, :t
is unnecessary to add the words "to the common nuisance of all good citizens, " etc, 0?
words of similar import. Com. v. Enright, 98 Ky., 935.

} 122. Indictments relating to divers offences.

1. Assault with intent to kill. See Com. v. Heath, 99 Ky., 182.

2. Assault and Battery. Id.

3. Forgery. See 96 Ky., 40.

4. Murder.

There is a fatal variance between an indictment charging the defendant with murder by
"striking, beating, etc.," the deceased, and proof that the defendant knocked the deceased
down, who, in falling, struck his head against some hard substance, so fracturing his skill
that death ensued. Helmerking v. Cbtn., 100 Ky., 74.

5. Robbery. See 97 Ky., 267.

6. Seduction. See 98 Ky., 708, 716.

7. Wounding.

a. The phrase "malicious cutting" in an indictment is a "brief general description,"
and is a sufficient description of malicious cutting and wounding with intent to kill.
Clark v. Com., 18 Ky. L. Rep., 758.

b. See Gratz v. Com., 96 Ky. % 162.

i 124. Indictment must be certain and direct.

a. The party charged.

An indictment is sufficient that charges two persons with murder, the one or the otker
doing the cutting and the other aiding and abetting. Jackson v. Com., 100 Ky., 239, 25a

b. The offence charged.

An indictment accusing one of "malicious shooting" is defective, as it is not ceruu
enough. Com. v. Tupman, 17 Ky. L, Rep., 217. An indictment accusing one of "arsoc
or barn-burning" is sufficient to support a conviction for burning a barn. Smblett r. Com.,

18 Ky. L. Rep., 100. An indictment accusing one of "suffering and permitting oa

his premises," even though followed by a statement of the particular circumstances of the
offence of suffering and permitting gaming on the defendant's premises, is fatally defective,
because the indictment is not direct and certain as to the offence charged. Brooks v. Cm^
98 Ky., 143. See 18 Ky. L. Rep., 781.



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i



NOTES AND DECISIONS. 167



c. The county in which the offence was committed.

It is sufficient to indicate the county so directly and certainly that a person of ordinary
intelligence would naturally understand the county in which the offence was charged to
have been committed. Armstrong v. Com., 16 Ky. L. Rep., 494.

d. The particular circumstances oj the offence charged.

An indictment for manslaughter, charging that the offence was committed "malicious-
ly*" "in a sudden affray," is good; for the word "maliciously," which is applicable to mur-
der, is mere surplusage. Coe v. Com., 94 Ay., 606. If the indictment accuses the defend-
ant of the offence of cutting " with intent to kill," it is unnecessary, in stating the particular
" circumstances of the offence, to repeat that it was done "with intent to kill." Shouse v.
Com., 95 Ky., 621. An indictment for assault with intent to kill by shooting with a pistol,
will not sustain a conviction for assault by striking with a pistol. Com. v. Heath, 99 Ky., 182.

\ 126. Only one offence must be charged.

a. An indictment for malicious shooting and wounding with intent to kill, charged that
the defendant did it with A as accessory, and in another count that B did it with the de-
fendant as accessory ; held, that but one offence was charged. Howard v. Com., 96 Ay., 1922.

b. The offences of forgery and uttering a forged instrument can not be joined in one
indictment. Huff v. Com., 19 Ky. L. Rep., 1064.

\ 128. Allegation as to owner of property immaterial.

The failure to state that the owner of the property was a corporation is immaterial.
Jackson v. Com., 17 Ky. L. Rep., 1 197, 1 199.

} 129. Allegation as to time.

It is sufficient to state that the offence was committed on a certain day if the transcript
shows that the indictment was found at a later day. Cratz v. Cotn., 96 Ky., 162, 165.

See Williams v. Com., 18 Ky. L. Rep., 667.

J 135. Larceny, etc., of money.

See Travis v. Com., 96 Ky., 77, 82.

J 151. Attendance of witnesses secured.

Where a material witness for the defendant is confined in the penitentiary, the court
can compel the warden to produce the witness at the trial to testify. Hancock v. Parker,
100 Ky., 143.

J 153. When depositions may be taken.

See note to J 151.

?} 154, 155. Arraignment.

After some testimony was heard, it was remembered that the indictment had not been
read and no plea entered for the defendant. Thereupon the Commonwealth's attorney
read the indictment to the jury and then turned to defendant's counsel and asked what the
plea was, to which defendant's counsel responded "not guilty," and it was agreed that the
testimony that had been given was to be considered without being re-introduced : held,
the reading of the indictment in the hearing of the defendant was a substantial compliance
with the Code, and defendant's pleading to the indictment without objection, and agree-
ing that the testimony already taken should be considered without being re-introduced,
was a waiver of the irregularity in the proceedings. Utterback v. Com., 20 Ky. L, Rep., 1 51 5.

} 157. Defendant must plead or move to set aside indictment.

After one hung jury it is too late to insist that the indictment was not properly found.
SnUon v. Com., 100 Ky., 308, 313.

} 158, subs. 2 Grounds for setting aside indictment.

The action of the court in setting aside an indictment because persons other than the
grand jurors were present when they acted upon it, is not subject to appeal. Com. v.
Simons, 100 Ky., 164.

66



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168 APPENDIX.



I 165. When demurrer is proper.

A demurrer is proper to plead the statute of limitations. Williams ▼. Com., 18 Ky. L
Rep., $67.

i 168. Misjoinder of offences, one may be dismissed.

See Froman v. Com., 19 Ky L. Rep., 948.

i 178. Bar to another prosecution.

See Gaskins v. Com., 97 Ky., 494.

& 185, 187. Time of trial.

See Brooks v. Com., 100 A>., 194, 198.

$ 189. Regulation of continuances, &c.

a. The act of May 15, 1886, is construed and its constitutionality upheld in Adkms*.
Com., 98 Ky., 539.

b. See Vinegar v. Com., 19 A>. Z. AV/. f 84a

c. See Wiggins v. Ow/., 20 A>. Z. ^r/., 908; Tolliver v. Ctow., /</., 906.
{ 194. Jurors from adjoining county.

The court should make a fair effort to obtain an unbiased jury in the county where the
prosecution is pending, and is not to be controlled by the mere affidavit of the defendant.
Roberts v. Com., 94 Ky., 499, 504. See also Brown v. Com., 50 S. W. Rep., 545.



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 138 of 142)