DECISIONS OF THE COURT OF APPEALS OF KENTUCKY. SUMMER TERM, 1863. CASE 1-FORFEITED RECOGNIZANCE-JUNE 3. Commonwealth vs. Roberts, APPEAL FROM THE HENRY CIRCUIT COurt. 1. A recognizance, entered into in October, 1860, was filed in the clerk's office in December, 1860. The case was before the grand jury at the term to which the defendant was recognized, who reported to the court that they had failed to indict; but the court failed to enter of record the discharge of the defendant and the exoneration of the bail. (Crim. Code, sec. 116.) In September, 1862, (no indictment in the meantime having been found, nor any other step taken towards the prosecution of the charge,) proceedings were taken to forfeit the recognizance. Held, That the circuit court properly dismissed the proceeding, the effect of which was to exonerate all the parties from liability on the recognizance-an order which, under the section supra, should have been made upon the failure of the grand jury to indict. A. J. JAMES, Attorney General, for Commonwealth, cited 2 Met., 387. Commonwealth vs. Roberts. CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT: Admitting that the answer of the defendants was technically defective, and that the objection of the Commonwealth to some of the evidence offered, should have been sustained, still the question arises whether, upon the whole record, any substantial injustice has been done the Commonwealth by the judgment appealed from. The recognizance appears to have been entered into in October, 1860, and filed in the clerk's office in December, 1860. From that day to this, so far as the record shows, no indictment has ever been found against Roberts, nor any other step taken towards the prosecution of the charge mentioned in the recognizance. The presumption is, that the charge was submitted to the grand jury of the county at the term of the court to which the defendant was recognized, being the April term, 1861. It was, moreover, proved without objection, that the case was before the grand jury at that term, that they failed to find an indictment, and that that fact was reported by them to the court. In addition to this it was admitted on the trial that no indictment was found. By section 116 of the Criminal Code, "unless an indictment be found at the term of the court next after the first submission of the charge to the grand jury, the defendant shall be discharged from custody, or exonerated from bail, unless, for cause shown, the court shall otherwise direct." It was then the duty of the court, on the report of the grand jury, to have entered of record the discharge of the defendant and the exoneration of the bail, unless there had existed some reason for directing otherwise. This, however, appears not to have been done. But certainly that onission should not be allowed to prejudice the defendant and his sureties to the extent of subjecting them to liability for the whole amount of the bail. In September, 1862, nearly two years after the date of the recognizance, and no indictment having in the meantime been found, this summons is issued against the defendant and his sureties, requiring them to show cause why the recognizance should not be forfeited, &c. In our opinion the facts referred to constituted sufficient cause, and for that reason the Brown vs. Commonwealth. court below properly dismissed the proceeding, the effect of which was to exonerate all the parties from liability on the recognizance an order which, under the section quoted, should have been made, as already shown, upon the failure of the grand jury to indict. The errors in the proceeding are not prejudicial to the appellant, and therefore furnish no ground of reversal. The judgment is affirmed. CASE 2-FORFEITED RECOGNIZANCE-JUNE 4. Brown vs. Commonwealth. APPEAL FROM THE JEFFERSON CIRCUIT COURT. 1. In an action upon a forfeited recognizance the defendant must make a written statement of the facts constituting his defense. 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. 2. In such case the production of the respite of the Governor, not relied on by pleading, constitutes no defense to the action. The court is not authorized to take any judicial notice of the paper presented in that way. 3. That the Governor remits, not the forfeiture, but the judgment itself except as to "'fees and costs," furnished no ground for setting aside the judgment so in part omitted. JEFF. BROWN, for appellant, cited Crim. Code, secs. 91, 92; Rev. Stat., chap. 63, art. 3, secs. 9 and 10. A. J. JAMES, Attorney General, for Commonwealth, cited Crim. Code, scc. 343; 14 B. Mon., 392. CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT: The summons requiring the defendant to show cause why the Commonwealth should not have judgment for the amount of the forfeited recognizance was regularly executed on Brown, who failed to answer, or to "show cause" in any available Brown vs. Commonwealth. mode or form why the forfeiture should not be enforced. The record shows, it is true, that, on the calling of the cause, he produced the respite of the Governor, but certainly the mere production of that paper constituted no defense to the action. The court was not bound, or even authorized, to take any ju dicial notice of the paper presented in that way. The statute dispenses with pleadings on the part of the Commonwealth in this class of cases, but in all other respects the action must "proceed as an ordinary civil action." and of course the rule which requires a written statement by the defendant, of the facts constituting his defense, is just as applicable to this as to any other kind of action. Without such written statement, the mere exhibition to the court of the evidence relied on, by the defendant, either to defeat or suspend the action, was properly disregarded, and the court did not err in rendering the judgment. Nor did the court err in refusing to set aside the judgment. The affidavit and exh.bits filed with it are not made part of the record by bill of exceptions or otherwise, but if they were they disclose no valid reason for disturbing the judgment. It appears distinctly that the Governor remitted, not the forfeit ure, but the judgment itself, except as to "fees and costs," and certainly the remission furnished no ground for setting aside the judgment so in part remitted. The judgment is therefore affirmed. Commonwealth vs. Graddy. CASE 3-INDICTMENT-JUNE 4. Commonwealth vs. Graddy. APPEAL FROM THE MARSHALL CIRCUIT COURT. 1. 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 eno specially appointed by the court, the indictment may be quashed. It is a substantial error. (Crim. Code, secs. 159, 98; Rev. Stat., chap. 55; act of March 17, 1862, sess. acts, 95.) 2. Section 194 of the Criminal Code, which authorizes the court, for sufficient cause, to designate some other officer or person to summon jurors, relates only to petit jurors. 3. Where the grand jury is composed of jurors selected by commissioners, as directed by the Revised Statutes, the court say they incline to the opinion that the summoning of them by a person other than the sheriff or coroner would not be "a substantial error." A. J. JAMES, Attorney General, for Commonwealth, cited Crim. Code, sec. 194; Act March 17, 1862, Gen. Laws, 95; 2 Rev. Stat., 348; lb., 75-6; Wharton's Amer. Crim. Law, sec. 472. J. C. GILBERT, for appellee, cited Crim. Code, secs. 159, 160; 2 Rev. Stat., 75, sec. 2; Ib., 81, sec. 11; Act of March 17, 1862. JUDGE BULLITT DELIVERED THE OPINION OF THE COURT: An indictment against Graddy, for a felony, was, upon his motion, quashed by the circuit court, because the grand jury, by which it was found, was summoned by one Darnall, acting under the following order of the circuit court: "Ordered that A. A. Nelson be appointed to act as sheriff in summoning jurors and attending upon the court, who, with leave of court, appointed Philip Darnall his special deputy." From the judgment quashing the indictment the Commonwealth appealed. One of the grounds for setting aside an indictment is, "a substantial error in the summoning or formation of the grand jury." (Crim. Code, sec. 159.) In our opinion there was a substantial error in the sum noning of the jury in this case. |