Commonwealth v. Moore , 3 Met. 477 ( 1861 )

CHIEF JUSTICE STITES

delivered the opinion op the court r

Assuming that the mayor of Covington had the power to hear and commit upon a charge of felony, it is evident that he had not, as a court of inquiry, any power to recognize or admit to bail the accused during the progress of the examination, as in cases of misdemeanor. /

The Criminal Code (section 49,) is conclusive upon this point. It provides as follows: “During ¿he periods of adjournment the-defendant shall be committed to jail or to the custody of a peace officer; but where the offense is a misdemeanor, the defendant may give bail, or the magistrate may fix a sum equivalent to bail, upon which being deposited with the peace officer in attendance, unless he be a policeman, as security for the defendant’s appearance at the time or times appointed, he may be released from custody during the periods of adjournment of the examination.”

Here the party in custody was charged, not with a misdemeanor but with a felony, and it was the duty of the mayor, acting as an examining court, as required by the section, supra, either to commit him to jail or to the custody of a peace officer. He had no right to admit him to bail, or to release him from custody, during the progress of the examination; and the bail bond taken for his appearance, during the examination, was unauthorized and void, and properly so held by the circuit court.

Judgment affirmed.