Davis v. State

1 Morr. St. Cas. 205, 6 Howard 399

• Court: Mississippi Supreme Court
• Decided: July 1, 1872
• Status: Published

Opinion

Davis, J.:

The only question which this court can properly consider, is the one raised by the demurrer in the circuit court. Does (as is insisted by counsel) the 17th section of the 1st article of the constitution of the State of Mississippi, which declares that all persons, before conviction, shall be bailable by sufficient securities, except for capital cases, operate as an inhibition upon the powers of the circuit court to take bail from prisoners after conviction and before judgment ? We think not. It is believed that that clause of the constitution was intended by its framers for the better security of the citizen against an improper exercise of discretion, with which the common law clothed the judges of the courts; and to take from them all discretion whatever before conviction, only when it becomes necessary to discriminate between capital and minor offenses; leaving the discretion of the judges to take bail after conviction and before judgment as it stood at common law. There was a great necessity for that provision of the constitution, originating in the fact that judges, under the common law, were in the daily practice of committing prisoners to jail for offenses less than capital.

It is insisted by the counsel for the plaintiff in error that the cases of the Commonwealth v. Trask, 15 Mass. R., 277; Ex-parte Taylor, 5 Cow., 39 ; State v. Conner, 2 Bay S. C. R., 38, settle the doctrine that, at common law, the power to bail after conviction did not exist, and that all discretion ceased on the part of the judges. After a very careful examination of those cases, we believe they do not warrant such a construction, but establish the very reverse of the proposition, so far as they are analogous to this case. The only point raised in the case • of Trask, was in relation to the power of the court to allow bail to the prisoner before conviction, upon the facts presented by the testimony. The same question arose in the case of ex-parte Taylor. It must, therefore, be true that they cannot be relied on to deprive the courts of the country of a power founded in justice, and intended, in many instances that may arise, to protect the citizens of the country from manifest oppression.

Conner’s case is in all its features the same with the case now before the court, and must be conclusive in establishing the power of the court, to grant bail after conviction and before judgment, when, from any peculiar circumstances, the court may think justice requires its interposition. Conner was convicted ; and before sentence was pronounced upon him, the attorney general moved the court to order him to jail. The application was resisted by the prisoner upon the grounds that he desired an appeal to the supreme court of the state. The prisoner’s right to bail was fully considered by the court and refused. It was not denied in that case, however, even by the attorney general, but that the court possessed the power to grant bail after conviction, nor did the court so determine. But, on the contrary, the court determined that, in cases where the punishment was only fine and imprisonment, the court would exercise its discretion so far as to allow bail when the peculiar circumstances of the case would seem to justify it. While we admit the power of the judges to take bail after conviction, we think it should be exercised with great caution, and only in minor offenses, where the pecidiar circumstances of the case render it necessary and proper.

In the case of Conner, the supreme court, to which an appeal was taken, after confirming the judgment of the circuit court, remarked, that they would take an opportunity of expressing their opinion in favor of the refusal of the circuit court to admit a defendant to bail after his conviction in a ease so highly criminal, but admitted the necessity of the exercise of a sound discretionary power, even after conviction. The power of the court to admit to bail after conviction is nowhere denied in cases which are the legitimate subject of bail.

We think the court did right in overruling the demurrer in this case. The judgment must be affirmed.