Ex parte Berry

• Decision Date: 21 March 1939
• Docket Number: 27464.
• Parties: Ex parte BERRY.
• Court: Washington Supreme Court

88 P.2d 427

198 Wash. 317

Ex parte BERRY.

No. 27464.

Supreme Court of Washington

March 21, 1939

Department 1.

Proceeding in the matter of the application of K. W. Berry for a writ of habeas corpus, to obtain admission to bail pending appeal from conviction.

Application denied.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

C. D. Cunningham and Lloyd Dysart, both of Centralia, for petitioner.

Smith Troy, Pros. Atty. for Thurston County, of Olympia, for respondent.

STEINERT Justice.

This is a habeas corpus proceeding in which, on petition filed in this court, an order was made directing the sheriff of Thurston county to show cause why petitioner should not be admitted to bail pending his appeal from a judgment of conviction and sentence in the superior court upon a charge of kidnapping.

In an information previously filed in the superior court petitioner had been charged with the crimes of kidnapping in the first degree and assault in the first degree. He pleaded not guilty as to each count. Trial by jury was had and a verdict was returned finding him guilty upon both. At the same time, pursuant to the provisions of the kidnapping statute, Rem.Rev.Stat. § 2410--1 the jury returned a special verdict in which it found that the death penalty should not be inflicted. Motions in arrest of judgment and for a new trial having been denied, the superior court entered judgment of conviction sentencing petitioner to the penitentiary for the remainder of his natural life for the crime of kidnapping as charged, and also for a term of twenty years in the penitentiary for the crime of assault as charged. Petitioner thereupon gave due notice of appeal to this court, and subsequently filed in the superior court a motion to have the trial court fix his bail on appeal. The motion was denied. Petitioner then brought this proceeding, in which the only matter involved relates to the right of bail after conviction and sentence for kidnapping; we are not now concerned with the sentence for assault.

The question Before us is whether or not, under the facts presented and the law of this state, petitioner is entitled to bail.

Article 1, § 20, of the constitution of the state of Washington provides: 'All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great.'

The term 'capital offense,' as used in the constitution means an offense for which a sentence of death may be imposed. State v. Johnston, 83 Wash. 1, 144 P. 944. The test to be applied in determining whether an offense is a capital one, within the meaning of the constitution or a statute, is not whether the death penalty must necessarily be imposed, but whether it may be imposed. Fitzpatrick v. United States, 178 U.S. 304, 20 S.Ct. 944, 44 L.Ed. 1078; Ex parte Dusenberry, 97 Mo. 504, 11 S.W. 217; Ex parte Herndon, 18 Okl.Cr. 68, 192 P. 820, 19 A.L.R. 804; State v. Dabon, 162 La. 1075, 111 So. 461; 8 C.J.S., Bail, 54, § 34; 6 Am.Jur. 57, § 20.

The crime of kidnapping in the first degree is punishable either by death or by life imprisonment in the state penitentiary. Rem.Rev.Stat. § 2410-1 (1). It is therefore a capital offense.

If petitioner, upon being charged with the crime of kidnapping in the first degree, had, Before trial, sought bail, the only question, under the provisions of the constitution, would have been whether or not the proof of guilt was evident or the presumption thereof was great; for, even capital offenses are bailable unless the qualifying conditions are present. But, here, we have a different situation. Petitioner has not only been charged with a capital offense, but has been convicted thereof. The matter must, therefore, be viewed in the light of those circumstances.

The constitutions of many, if not most, of the states contain provisions practically identical with those contained in Art. 1, § 20, of our constitution, and it has been uniformly held that such provisions do not confer a right to bail after conviction or pending an appeal. 6 Am.Jur. pp. 60, 61, §§ 27, 28. For collation of cases see 19 A.L.R. 807, Annotation to Ex parte Herndon, 18 Okl.Cr. 68, 192 P. 820, 19 A.L.R. 804. See, also, In re Halsey, 124 Ohio St. 318, 178 N.E. 271, 77 A.L.R. 1232. While the major principle declared by the authorities is that the constitution does not guarantee the right to bail pending an appeal from conviction, they also indicate that the matter of bail under such circumstances rests in the discretion of the court unless otherwise determined by statute. We are in accord with that view, and are of the opinion that the constitution neither confers the right to bail, nor prohibits its allowance, pending an appeal from conviction.

We look, then, to the statute upon the subject. In passing, we take note of Rem.Rev.Stat. § 2310, which provides: 'Every person charged with an offense, except that of murder in the first degree, where the proof is evident or the presumption great, may be bailed by sufficient sureties, * * *.' (Italics ours.) That statute is not applicable here for the same reason that the constitutional provision is not. It applies only to persons who have been charged with crime but who have not yet been convicted.

Rem.Rev.Stat. § 1747, so far as it is material here, reads as follows: 'In all criminal actions, except capital cases in which the proof of guilt is clear or the presumption great, upon an appeal being taken from a judgment of conviction, the court in which the judgment was rendered, or a judge thereof, must, by an order entered in the journal or filed with the clerk, fix and determine the amount of bail to be required of the appellant; * * *.' (Italics ours.)

Petitioner contends that under that statute he is entitled to have his bail fixed and determined as a matter of right. His contention is grounded upon his interpretation of the words 'capital cases,' used in the statute, as distinguished from the words 'capital offenses,' used in the constitution. His argument is that, inasmuch as Rem.Rev.Stat. § 1747 is an appeal statute, the term 'capital cases' has reference to criminal cases that have been determined in the lower court and judgment and sentence pronounced; that in determining whether an accused person is entitled to bail Before trial, under the provisions of the constitution, the court must look to the information or indictment and to the statute defining the offense, but that after trial and upon conviction, the offense charged in the information or indictment is merged in the judgment, and the court must then look only to the judgment and sentence to determine whether the case is capital or otherwise; and that, if the judgment and sentence prescribe anything less than the death penalty, the case is not a 'capital case.' The argument possesses logic and we recognize its force. We also find that it has sustaining authority. The cases cited by petitioner to support his position are the following: Ex parte McCrary, 22 Ala. 65; Ex parte Fortenberry, 53 Miss. 428; Ex parte Vickets, 201 Mo. 643, 100 S.W. 585; Ex parte Dipley, 233 Mo. 235, 135 S.W. 56; Walker v. State, 137 Ark. 402, 209 S.W. 86, 3 A.L.R. 968; Outler v. State, 154 Ark. 598, 243 S.W. 851.

In the McCrary case supra, defendant, indicted for murder, applied for bail and was refused. The penal code of the state of Alabama gave 'to the juries the power of saying, in cases of murder in the first degree, whether the accused shall suffer death, or go to the penitentiary for life.' On application to the supreme court for writs of habeas corpus and certiorari, the court denied the application, but in its opinion stated that murder in the first degree might, or might not, be a capital offense, according as the jury should decide, and that until the accused was tried, the offense, in law and in the eye of the constitution, remained a capital offense.

While that declaration may have been the view of the court as to what the law was in cases involving bail after conviction, the statement was unnecessary to the decision because, in fact, there had been no trial and the accused was in no event entitled to bail upon the offense charged.

In the Fortenberry case, supra, the relator, who was incarcerated in jail on a charge of murder, sought bail pending the trial. From an adverse judgment he appealed. The judgment was affirmed, but in its opinion the supreme court of Mississippi stated that the indictment retained the character of a charge for a capital offense until the jury should declare otherwise. Again, it will be noted that any suggestion by the court of the effect of the verdict on the character of the offense was unnecessary to the decision.

In the Vickers case, supra, the accused was charged with rape, which, under the statute (Mo.St.Ann. § 3999, p. 2801), was a capital offense carrying alternative punishment. He was given a sentence of fifty years in the penitentiary. In his application for a writ of habeas corpus he sought a stay pending appeal. His contention was that, having been convicted of a capital offense, the appeal operated as an absolute stay, under the provisions of the statute governing capital cases. The supreme court of Missouri held that the statute did not apply in cases in which the sentence was not capital, but only imprisonment in the penitentiary. The case may be accepted as authority for petitioner in the case at bar, although it may be noted that the Missouri case did not involve a question of bail at all but only a stay of judgment or execution.

The case of Ex parte Dipley, supra, presented to the Missouri court the same legal question as was presented in the Vickers case, supra, and upon the authority of the earlier case the...