Re Welisch

163 P. 264, 18 Ariz. 517, 1917 Ariz. LEXIS 102

• Court: Arizona Supreme Court
• Decided: February 26, 1917
• Status: Published

Opinions

FRANKLIN, C. J.

This is an application to this court that the defendant, Paul Welisch, be admitted to bail pending an appeal. It appears that the defendant was convicted of the crime of violating the prohibition law. This crime is a misdemeanor under the constitutional amendment, the penalty denounced being both a fine and imprisonment. The trial court adjudged the defendant to suffer imprisonment in the county jail for a period of fourteen months, and that he pay a fine of $300. His motion for a new trial was overruled and an appeal taken, which in contemplation of law is pending in this court. The judge of the superior court granted the defendant a certificate of reasonable grounds for the appeal, but the court denied the privilege of bail pending the determination thereof, and defendant is now confined in the jail of Cochise county. The reasons given by the trial court for denying bail after conviction appear in the papers presented on the present application to be as follows:

“The court being satisfied from the evidence in this case that there is no doubt of the actual guilt of the defendant, and a certificate of reasonable ground of appeal having been granted on a question of law, and not on the facts in the case, and there being several other charges pending against the defendant of the same general nature as the one on which he has been convicted, and there being no unusual or extraordinary circumstances in the opinion of this court in this case justifying the granting of bail after conviction and judgment, it is ordered that the bail be denied.”

At common law bail is a matter of discretion. The court of king’s bench division of the high court of justice, or a judge thereof in vacation, had an unlimited power of admitting to bail for all offenses, including treason and murder, but bail was not demandable as a right. This rule of the common law has been materially modified by constitutional enactment and statutory provisions in this state, as well as in most other states of the Union.

“All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.” Section 22, article 2, Constitution.

The people of Arizona at the last election, through the adoption of an initiated measure submitted to the voters, abolished capital punishment for murder, so that now all persons charged with the crime of murder, however diabolical or atrocious it may be, and howsoever evident may be the proof of guilt thereof, as well as all other crimes not punishable with death, may, before conviction, demand admission to bail as a strict legal right, which no judge or court can properly refuse. The constitutional provision in Arizona and like provisions in other states of the Union make the admission to bail a matter of right before conviction, but, with the exception of certain cases, not afterward, because after conviction his status is materially changed before the law. Before conviction he “stood upon his plea of not guilty, supported with all the presumptions of innocence with which the law delights to surround him. But when his trial has been had, and his plea proven false, the law will not stultify itself by presuming him other than that it has itself adjudged him to be.” Ex parte Toll, 41 Cal. 29. See, also, In re Haigler, 15 Ariz. 150, 137 Pac. 423; Ex parte Schriber, 19 Idaho, 531, 37 L. R. A. (N. S.) 693, 114 Pac. 29; Ex parte Dyson, 25 Miss. 356; Ex parte Heath, 227 Mo. 393, 126 S. W. 1031; State v. Ward, 9 N. C. (2 Hawks) 443; Ex parte Scwartz, 2 Tex. App. 74; 1 Bailey on Habeas Corpus, § 113. On the other hand, there is much in the position that one convicted of crime, and who is given the right of appeal from such conviction, should not be denied his liberty pending his appeal, provided he is able to give reasonable bail while his matter awaits the action of the appellate court. But, however this may be, it is a matter to be determined by the legislature.

The law-making power can enlarge the constitutional grant, so as to include persons convicted of crime and give to such persons in all eases the right to be admitted to bail until an appeal, if any taken, shall be determined in the appellate court; but it has not been considered the part of wisdom to extend the right to all cases after conviction, the legislature having extended the right to one class only of eases after conviction which we shall presently discover. There being no longer any offense punishable with death, section 1189 of the Penal Code provides that any person charged with crime may be admitted to bail before conviction as a matter of right. Section 1190 of the Penal Code provides:

“After conviction of an offense ... a defendant who haa appealed may be admitted to bail: (1) As a matter of right, when the appeal is from a judgment imposing a fine only, (2) As a matter of discretion in all other eases.”

Section 1191 of the Penal Code follows, with an enumeration of the conditions of the bail, both before and after conviction, of all bailable offenses. It follows, therefore, from a just and reasonable construction of the Constitution and statutes of this state, that bail before conviction and bail after conviction, pending an appeal from a judgment imposing a fine only, is a matter of absolute right, irrespective of the merits of the case; but in all other cases, pending an appeal, it is still left discretionary, to be exercised upon the circumstances appearing in the particular case. "What, then, is the nature of the discretion in the exercise of which the application for bail is to be determined? It is such discretion as was exercised as at the common law, with the modifications wrought by the constitutional and statutory provisions in this state, controlled by certain well-defined and established rules, and guided by the spirit, principles and analogies of the law, to be gleaned from the precedents.

Of course, when the law gives to a court or judge a power to be exercised at discretion, it means a sound legal discretion. It does not mean a wild whimsical discretion — a mere vague power, to be exercised only at the whim and caprice of the judge, because he may have the humor to bestow a favor upon one person as a mark of friendship, and withhold it from another as a mark of displeasure. All persons have perfect equality before the law, whether rich or poor, powerful or abject, and the matter of allowing bail after conviction, as in all matters calling for the exercise of discretion by a court or judge, must be legally and regularly exercised, so that all persons in like circumstances may have its benefit or be subject to its denial, that on the one hand it may not be capriciously granted and on the other arbitrarily withheld.

“ ‘Discretion’ of court is a liberty or privilege allowed to a judge, within the confines of right and justice, to decide an act in accordance with what is fair, equitable and wholesome, as determined by the peculiar circumstances of the case, and as discerned by his personal wisdom and experience, guided by the spirit, principles and analogies of the law, to be exercised in accordance with a wise, as distinguished from a mere arbitrary, use of power, and under the law." Words and Phrases (2d Series), Yol. 2, p. 64.

“The discretionary power of the court to admit to bail is not arbitrary, but is judicial, and governed by established principles and precedents. A series of decisions have been provided for its guidance, and these demonstrate that this power is not of an arbitrary, but of a sound, discretion, and is to be confined within those limits to which an honest man competent to discharge the duties of his office ought to confine himself." 3R. C. L., §4.

At common law, after conviction, bail was allowed with the greatest caution, and only where circumstances of an exceptional or extraordinary character had intervened to make such action appear proper, such as one or more mistrials, unusual delay in the retrial of the prisoner’s case, conditions likely to affect seriously or fatally the prisoner’s health by reason of his confinement, or the acquiescence of the prosecutor in the application. Other circumstances might be suggested, distinguishing a particular case from the general mass of cases, as appealing to the discretion of the court. But the “court ought not to admit to bail after a verdict of guilty, unless when circumstances of extraordinary character had intervened since the conviction." Ex parte Brown, 68 Cal. 176, 183, 8 Pac. 829, 833.

It is urged on this application, however, that the defendant, having procured from the trial judge a certificate of reasonable grounds for the appeal, is entitled as a matter of right and without further showing to be let to bail, pending Ms appeal from the judgment of conviction. By the Penal Code of this state it is provided:

‘ Sec. 1160. An appeal to the supreme court from a judgment of conviction stays the execution of the judgment in all capital eases, and in all other cases, upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of the chief justice or a judge of the supreme court, that, in Ms opinion, there is reasonable ground for the appeal, but not otherwise.

“Sec. 1161. If the certificate provided for in the preceding section is filed, the sheriff must, if the defendant be in Ms custody, upon being served with a copy thereof, keep the defendant in bis custody without executing the judgment and detain him to abide the judgment on appeal.

“Sec. 1162. If, before the granting of the certificate, the execution of the judgment" has been commenced, the further execution thereof is suspended, and, upon service of a copy of such certificate, the defendant must be restored by the officer, in whose custody he is, to his original custody.”

It is to be observed, from a consideration of these provisions of the Penal Code, that there exists a marked difference between the function of a certificate of reasonable grounds for appeal and a submission to the court’s discretion in the matter of letting to bail. When capital offenses existed in this state, the mere taking of an appeal prevented the hanging of the defendant, and in cases of other felonies the taking of an appeal, coupled with a certificate of reasonable grounds therefor, prevented the removal of the prisoner to the penitentiary, there to undergo the degrading imprisonment denounced against the perpetration of crime, until his case was finally determined adversely to him in the appellate court. In other words, it was a mere legislative respite, staying the execution of the judgment, in the one ease because the hanging would defeat the purpose and right of appeal, and in the other to prevent an infamous corporeal punishment until the legal remedies given the prisoner were exhausted; but in neither case do such statutes provide for the discharge of the convict from custody. There may be many cases where, after conviction, a certificate of reasonable grounds for appeal would be granted to stay the execution of the judgment, in which the circumstances of the particular case would not appeal to the sound discretion of the court in the matter of letting to bail. These statutory provisions are very plain. The statutory provisions of Utah, identical with those of this state, were before the court in the ease of Clawson v. United States, 113 U. S. 143, 28 L. Ed. 957, 5 Sup. Ct. Rep. 393. In that ease Mr. Justice HARLAN, speaking for the supreme court of the United States, said:

“These statutory provisions so clearly indicate the legislative intent that no room is left for interpretation. As the judgment did not impose upon the appellant a fine only, his admission to bail, pending the appeal from that judgment, was not a matter of right, but was distinctly committed, by the statute, to the discretion of the court or judge to whom the application for bail may be made. The exercise of that discretion is not expressly nor by necessary implication forbidden in cases in which the certificate of probable cause is granted; for, by the statute, that certificate only operated to suspend the execution of the judgment of conviction, requiring the officer having the accused in charge to retain him in his own custody to abide the judgment on appeal. We do not mean to say that the granting of such a certificate is not a fact entitled to weight in the determination of an application for bail, but only that the statute does not make it so far conclusive of the question of bail as to prevent the court from considering every circumstance which should fairly and reasonably control or affect its discretion. Whether the supreme court of the territory abused its discretion in the present case is a question not presented by the record before us; for it does not contain any finding of facts, nor the evidence (if there was any apart from the record of the trial, and of the proceedings upon the first application for bail) upon which the court below acted. Its judgment denying bail cannot therefore be reversed, unless, as contended by appellant, the certificate of probable cause necessarily carried with it the right to bail, and deprived the court of all discretion in the premises. But that construction of the statute is not, we think, admissible.”

In view of the clear legislative intent of these statutes, it is plain that the granting of a certificate of reasonable grounds for the appeal in misdemeanor eases is improvident, and not contemplated by the law, and therefore of no effect to stay the execution of the judgment. If we were to hold that such a certificate was allowable in this class of eases, we must hold that its only effect would be to stay the execution of the judgment. Obviously this ought not to be done, for a prisoner convicted of a misdemeanor might in such ease be kept in confinement in the county jail pending the determination of his appeal without the benefit of such period of time being allowed in satisfaction of the judgment against him. In misdemeanor cases, as well as in felony eases, when an appeal is taken, the fact that reasonable grounds of appeal exist would have weight with the court in determining the application for bail; but the fact alone that reasonable grounds of appeal appear to the judge to exist in a misdemeanor ease, and the fact alone that a certificate of reasonable grounds for the appeal had been granted in a felony case, is not “so far conclusive of the question of bail as to prevent the court from considering every circumstance which would fairly and reasonably control or affect its discretion.”

Original application for bail ought not to be made to this court, for we would not feel justified in arrogating to ourselves, or in interfering with, discretionary powers which are peculiar functions belonging to the trial judge in such cases. As observed in Ex parte Schriber, supra:

“We are not familiar with the situation and the circumstances of the petitioner, and we think that is a matter with which the trial judge can deal more justly and wisely. He is familiar with the parties and their ability to give bail, and also knows the facts surrounding the commission of the offense for which he was convicted.”

Of course, if the circumstances of the particular case are exceptional, and the trial judge acts capriciously, or arbitrarily refuses to act, and with no regard for a sound discretion, in other words, not confining himself “within those limits to which an honest man, competent to discharge the duties of his office, ought to confine himself,” then, in an appropriate proceeding to review the exercise of such discretion, this court would be bound to interfere.

No circumstances are made to appear here authorizing the admission of the applicant to bail, and it is therefore ordered that said application be and the same is hereby denied.

ROSS, J., concurs.