Bernacco v. United States
| Decision Date | 03 June 1924 |
| Docket Number | 6695. |
| Citation | 299 F. 787 |
| Parties | BERNACCO et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
T. J Hoolan, of St. Louis, Mo., for plaintiffs in error.
Carroll W. Harlan, Asst. U.S. Atty., of St. Louis, Mo.
Before STONE and KENYON, Circuit Judges.
This is a 'motion for supersedeas' by plaintiffs in error who stand convicted and sentenced to fine and to imprisonment. A supersedeas of the judgment of conviction 'simply prevents the execution of the judgment of the trial court, and by no means involves the question as to whether pending the writ of error he shall be detained or go at large upon bail. ' McKnight v. United States, 113 F. 451, 452, 51 C.C.A. 285, 286. The important thing sought here is allowance of bail. The supersedeas of the judgment may be allowed. The allowance of bail will be considered more at length. Writ of error to this court has been perfected and the transcript filed herein without delay. Application for bail was denied by the trial court.
The position of plaintiffs in error is (a) that a writ of error in a criminal case operates as or entitles the plaintiff in error to release upon proper bail bond as a matter of right (b) that, if the granting of such bail release is discretionary with the court, such discretion requires that it be granted in this instance.
(a) The court is clear that the allowance to bail after conviction is not an absolute right, but entirely within the exercise of a sound judicial discretion. This was true at common law. 6 C.J. 954; 3 R.C.L. 5. This is the rule in federal courts. Garvey v. United States (C.C.A.) 292 F. 591; United States v. St. John, 254 F. 794, 166 C.C.A 240; Ex parte Harlan (C.C.) 180 F. 119, 135; United States v. Simmons, 47 F. 723, 14 L.R.A. 78. Also see Ex parte Green (D.C.) 165 F. 557; McKnight v. United States, 113 F. 451, 51 C.C.A. 285; United States v Devlin, Fed. Cas. No. 14,955; Lee's Case, Fed. Cas. No. 8,180. McCourt v. Singers-Bigger, 150 F. 102, 80 C.C.A. 56 (this court), is not pertinent, as it was a civil appeal. Hudson v. Parker, 156 U.S. 277, 15 Sup.Ct. 450, 39 L.Ed. 424, is not in any way opposed either as to decision (which was upon other matters) or as to expressions in the opinion. Rule 35, par. 2, of this court is that the Circuit Justice, a Circuit Judge, or the District Court 'shall have power' to admit to bail after perfection of writ of error-- not must so admit to bail.
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Rossi v. United States
...decisions and practice of the courts in deciding whether or not the application to him shall be granted. Bernacco and Costelli v. United States (C. C. A.) 299 F. 787, 788. The purpose of taking bail is to secure the presence of the accused or convicted person and his service of his sentence......
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United States v. St. Clair
...by securing his future attendance. Bail and supersedeas are different. Green v. United States, 13 F.(2d) 121, this court; Bernacco v. United States, 299 F. 787, this court; Hanes v. United States, 299 F. 296 (C. C. A. 6); McKnight v. United States, 113 F. 451, 452 (C. C. A. 6). A convicted ......
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United States v. Motlow
...as would at this time call for the exercise of a sound discretion to admit to bail." The application was denied. See Bernacco v. United States (C. C. A.) 299 F. 787. The United States cites and relies upon the recommendation to District Judges by the conference of the Senior Circuit Judges,......
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United States v. Schuermann, Cr. No. 25673.
...by the appellate court. * * *" Prior to the adoption of the new criminal rules the Eighth Circuit Court of Appeals, in Bernacco et al. v. United States, 299 F. 787, 788, "The court is clear that the allowance to bail after conviction is not an absolute right, but entirely within the exercis......