People v. Perdue

48 Cal. 552, 1874 Cal. LEXIS 195

Opinion

By the Court, Wallace, C. J.:

The prisoner, adjudged guilty of the crime of manslaughter, and sentenced to suffer imprisonment in the State Prison for the period of two years, has prosecuted an ap-. peal, and now moves that he be admitted to bail pending the appeal. The statute (Penal Code, Sec. 1,272) provides that in such a case as this the prisoner may be admitted to bail “as a matter of discretion.” The views I entertain upon the general question were expressed in Ex parte Hoge, ante p. 3. In that case the Judge of the Court in which the prisoner had been convicted had considered his application, and had refused to admit him to bail. It is understood that in the present case the Judge of the Court below has refused to consider the application of the prisoner because the appeal taken had brought the case to this Court. That circumstance, in point of law, afforded no reason why the application should not be entertained by the District Judge. The facts and circumstances going to make up the legal discretion in the sound exercise of which the prisoner may be admitted to bail, are necessarily within the knowledge of the Judge who presided at the trial, and, in practice, the power to admit to bail pending the appeal, ought not to be exercised by us in the first instance, or until after the determination of the application below upon its merits.

The motion made here must, therefore, be denied, with leave to the prisoner to renew the application to the Judge of the Court below.

So ordered.