In Re Bolitho

Idaho Supreme Court

In Re Bolitho

6 P.2d 855, 51 Idaho 302, 1931 Ida. LEXIS 156

CourtIdaho Supreme Court

DecidedNovember 30, 1931

DocketNo. 5816.

StatusPublished

Cited by8 cases

This text of 6 P.2d 855 (In Re Bolitho) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Bolitho, 6 P.2d 855, 51 Idaho 302, 1931 Ida. LEXIS 156 (Idaho 1931).

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Opinion

GIVENS, J.

—Petitioner was convicted of fornication with a young woman some nineteen and one-half years of age, whom petitioner engaged as his stenographer in his real estate business. He was sentenced to pay a fine of $300 and costs, and to serve six months in jail.

Petitioner secured a writ of probable cause, and was refused bail, and applies herein for a writ of habeas corpus to compel the allowance of bail pending his appeal.

*303 Paragraph 2 of C. S., see. 9096, makes the allowance of bail in all cases other than where the punishment is death or by fine only, discretionary with the trial judge, and applies to misdemeanor cases where incarceration not for failure or inability to pay a fine, is part of the sentence. (In re Schriber, 19 Ida. 531, 114 Pac. 29, 37 L. R. A., N. S., 693.)

It is significant to notice that California, in 1909, amended their statute, Penal Code, see. 1272, which theretofore had been identical with our C. S., sec. 9096, to make bail in misdemeanor cases a matter of right. Our statute has not been so amended, and is as it was when first passed in 1864. The California statute was the same as ours from 1851 to 1909.

After conviction, and upon considering bail, the court properly acts upon the premise that the defendant is guilty as charged, and found by the jury. (Ex parte Ryan, 44 Cal. 555; Ex parte Duncan, 53 Cal. 410; Id., 54 Cal. 75.)

From the references by both plaintiff and defendant to the evidence in the ease, the acts of the defendant, if as testified to, and the jury evidently believed they were, were of a most revolting and disgusting character, and there is nothing in the conduct of the trial judge, in view of this situation and his knowledge of other circumstances which he evidently properly considered (In re France, 38 Ida. 627, 224 Pac. 433; In re Schriber, supra), to lead to the conclusion that he abused his discretion; hence, we may not set aside his order. (In re France, supra; State v. Waterman, 36 Ida. 259, 210 Pac. 208; In re Schriber, supra).

Writ quashed.

Lee, C. J., and Budge, Varian and McNaughton, JJ., concur.

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GIVENS, J.

—Petitioner was convicted of fornication with a young woman some nineteen and one-half years of age, whom petitioner engaged as his stenographer in his real estate business. He was sentenced to pay a fine of $300 and costs, and to serve six months in jail.

Petitioner secured a writ of probable cause, and was refused bail, and applies herein for a writ of habeas corpus to compel the allowance of bail pending his appeal.

*303 Paragraph 2 of C. S., see. 9096, makes the allowance of bail in all cases other than where the punishment is death or by fine only, discretionary with the trial judge, and applies to misdemeanor cases where incarceration not for failure or inability to pay a fine, is part of the sentence. (In re Schriber, 19 Ida. 531, 114 Pac. 29, 37 L. R. A., N. S., 693.)

It is significant to notice that California, in 1909, amended their statute, Penal Code, see. 1272, which theretofore had been identical with our C. S., sec. 9096, to make bail in misdemeanor cases a matter of right. Our statute has not been so amended, and is as it was when first passed in 1864. The California statute was the same as ours from 1851 to 1909.

After conviction, and upon considering bail, the court properly acts upon the premise that the defendant is guilty as charged, and found by the jury. (Ex parte Ryan, 44 Cal. 555; Ex parte Duncan, 53 Cal. 410; Id., 54 Cal. 75.)

From the references by both plaintiff and defendant to the evidence in the ease, the acts of the defendant, if as testified to, and the jury evidently believed they were, were of a most revolting and disgusting character, and there is nothing in the conduct of the trial judge, in view of this situation and his knowledge of other circumstances which he evidently properly considered (In re France, 38 Ida. 627, 224 Pac. 433; In re Schriber, supra), to lead to the conclusion that he abused his discretion; hence, we may not set aside his order. (In re France, supra; State v. Waterman, 36 Ida. 259, 210 Pac. 208; In re Schriber, supra).

Writ quashed.

Lee, C. J., and Budge, Varian and McNaughton, JJ., concur.

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6 P.2d 855, 51 Idaho 302, 1931 Ida. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bolitho-idaho-1931.

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