Wilson v. Commonwealth

Court of Appeals of Kentucky

Wilson v. Commonwealth

6 Ky. Op. 705, 1873 Ky. LEXIS 357

DecidedJune 5, 1873

StatusPublished

This text of 6 Ky. Op. 705 (Wilson v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wilson v. Commonwealth, 6 Ky. Op. 705, 1873 Ky. LEXIS 357 (Ky. Ct. App. 1873).

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Opinion

Opinion by

Judge Hardin :

The bail bond of Mix recites that he was “Allowed bail for his appearance during the examination of the charge,” but it fails to [706]*706show either that the trial was then progressing, or that the examination was adjourned to any particular time, as provided for by Section 48 of the Criminal Code. But we must infer from the bond that the time, of Mix’s appearance was either indefinite or left to the discretion of the magistrate, or that the court, by its order fixed some day for his appearance for trial, which is not even intimated in .the bond. If the issue made by the answer depended on what the magistrate’s record would prove if produced, the court was not in error in rejecting the parol testimony of the appellant, as to* what might have been better shown by the record, which was not produced by either party.

Bullock, for appellant. Rodmcrn, for appellee.

But we must infer from the language and tenor of the bond that no day was fixed for the appearance of Mix, and therefore the bond should be considered as binding him to* appear and surrender himself into* custody for examination in twenty days from the date of the bond according to Sec. 80 of the Criminal Code. The prescribed twenty days not having elapsed, and the forfeiture endorsed being only three days after thé date of the bond, we mlust adjudge that the supposed forfeiture was void and conferred on the commonwealth no right of action on the bond.

The judgment is therefore reversed and the cause remanded by a judgment in conformity to this opinion.

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Opinion by

Judge Hardin :

The bail bond of Mix recites that he was “Allowed bail for his appearance during the examination of the charge,” but it fails to [706]*706show either that the trial was then progressing, or that the examination was adjourned to any particular time, as provided for by Section 48 of the Criminal Code. But we must infer from the bond that the time, of Mix’s appearance was either indefinite or left to the discretion of the magistrate, or that the court, by its order fixed some day for his appearance for trial, which is not even intimated in .the bond. If the issue made by the answer depended on what the magistrate’s record would prove if produced, the court was not in error in rejecting the parol testimony of the appellant, as to* what might have been better shown by the record, which was not produced by either party.

Bullock, for appellant. Rodmcrn, for appellee.

But we must infer from the language and tenor of the bond that no day was fixed for the appearance of Mix, and therefore the bond should be considered as binding him to* appear and surrender himself into* custody for examination in twenty days from the date of the bond according to Sec. 80 of the Criminal Code. The prescribed twenty days not having elapsed, and the forfeiture endorsed being only three days after thé date of the bond, we mlust adjudge that the supposed forfeiture was void and conferred on the commonwealth no right of action on the bond.

The judgment is therefore reversed and the cause remanded by a judgment in conformity to this opinion.

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Bluebook (online)

6 Ky. Op. 705, 1873 Ky. LEXIS 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-commonwealth-kyctapp-1873.