
    CASE 10. — PROCEEDING BY THE COMMONWEALTH AGAINST P. A. HOWERTON AND ANOTHER. TO ENFORCE THE FORFEITURE OF A BAIL. BOND.—
    November 4, 1909.
    Howerton v. Commonwealth
    Appeal from Crittenden Circuit Court.
    J. F. Gordon, Circuit Judge.
    Judgment for the commonwealth, defendants appeal. —
    Reversed.
    1. Bail — Criminal Prosecutions — After Reversal on Appeal.— Where a judgment of conviction was reversed by the Supreme Court on -September 29th, the judgment was not vacated until the decision on appeal became final when the mandate wa-s lodged in the trial court on November 5th, pursuant to Or. Code Prac. -Sec. 360, as amended by Act March 21, 1904 (Acts 1904, p-. 144, c. 64), providing that no mandate shall issue or decision become final until after 30 days, excluding Sundays, from the day the decision was rendered, so that under Or. Code -Prac. -Sec. 75, prohibiting admitting defendant to bail after conviction, accused could . not be admitted to bail -on September 30th.
    
      2. Bail-Bond — Validity—Bond Given After Conviction. — Under Cr. Code Prac. Sec. 75, prohibiting admitting a defendant to bail after conviction, the trial court could not admit an' accused to bail after conviction, and before the mandate reversing the judgment was filed, and the bail bond given on its attempt to do so was void.
    JAS. A. & JOPIN A. MOORE, JAMES & JAMES AND L. H. JAMES for appellants.
    JAMES BREATHITT AND TOjVl B. McGREGOR for the commonwealth.
   Opinion op the Court by

Judge Barker

— Reversing.

Percy Howerton was convicted in the Crittenden circuit court of a felony. .Prom the judgment based upon the verdict of the jury, finding- him guilty as charged in the indictment against him, he appealed to this court, where the judgment was reversed on the 29th day of September, 1908, 129 Ky. 484, 112 S. W. 606, 33 Ky. Law Rep. 1008. On September 30,1908, the clerk of the Crittenden circuit court, in obedience to a long-distance telephone message from the circuit judge, admitted the defendant to bail in the sum of $1,000, with the appellants, P. A. and G-. W. Howerton, as sureties. Afterwards, on November 5, 1908, the mandate of this court was issued directing the judgment against the defendant to be set aside and awarding him a new trial. The case was then assigned on the docket of the circuit court for another trial. When the trial day arrived, the defendant, having been called, made default and forfeited his bond, and so far as we are advised he is still at large. This procedure is to enforce the forfeiture of the bond against the sureties, the appellants.

The question arising upon the foregoing statement is whether the bond executed by the original defendant, witli appellants as sureties, was or not void. Section 75 of the Criminal Code of Practice is as follows: “After conviction, the defendant can not be admitted to bail.” Section 360, as amended by Act March 21, 1904 (Acts 1904, p. 144, c. 64) provides: “That no mandate shall issue, nor decision become final, until after thirty days, excluding Sundays, from the day on which the decision is rendered, unless the court, in delay cases, otherwise direct. * * ” After the conviction of the defendant he could not be admitted to bail while the judgment of conviction remained in full force and effect. It was not vacated until the decision of this court became final, under the provisions of section 360, supra, and this could not be done until the 5th day of November, 1908, when the mandate was issued and lodged in the circuit court. It seems to • us therefore to follow that the admission to bail of the defendant Howerton by the clerk of the circuit court was without any authority, and the bond taken ;was void. The learned circuit judge was without jurisdiction to authorize the clerk to admit the defendant to bail until the filing of the mandate of this court and the setting aside of the judgment of conviction.

In Commonwealth v. Phillips, 116 Ky. 329, 76 S. W. 118, 25 Ky. Law Rep. 544, it was held that, while under section 74, Cr. Code Prac., a person charged with a felony may not be admitted to bail before being brought before a magistrate, and, though the magistrate issuing the warrant indorsed upon it that the defendant might be admitted to bail, the bond ac7 cepted by the sheriff was void. In the cases of Commonwealth v. Ball, 6 Bush, 291, and Covington v. Commonwealth, 3 Bush, 478, it was held that bonds such as involved here, taken by an officer or person unauthorized so to do, are void and impose no obligation on the sureties to the commonwealth. See, also, Branham v. Commonwealth, 2 Bush, 3; Creekmore v. Commonwealth, 5 Bush, 312; Commonwealth v. Roberts, 1 Duv. 199; Morgan v. Commonwealth, 12 Bush, 84.

Judgment reversed, with directions to quash the recognizance upon which the appellants are sureties.  