Kilby v. Commonwealth

Opinion by

Judge Hardin:

It seems to,us that,.when the' prosecution was-terminated in January, 1873, by the acquittal and discharge of Kilby, and the conviction of Harris and judgment against him., without any order of the court forfeiting the bond for his appearance and submission of himself to the orders and process of the court in the case, the utmost remaining liability of Harris or Kilby on the bond, was that Harris would perform so much of the judgment as was enforceable -against him. That liability was only enforceable at a subsequent term of the court, by a direct proceeding on the bond for some alleged breach of its stipulations; and, in our opinion, the mere failure of Harris to appear in court at a time when the prosecution against him was ended, did not constitute such a breach of the bond. The order of forfeiture was therefore erroneous, and the judgment founded on it was necessarily so.

Wherefore the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.