Ex parte Byrd

• Decision Date: 17 February 1911
• Citation: Ex parte Byrd, 55 So. 203, 172 Ala. 179 (Ala. 1911)
• Parties: EX PARTE BYRD, JUDGE.
• Court: Alabama Supreme Court

55 So. 203

172 Ala. 179

EX PARTE BYRD, JUDGE.

Supreme Court of Alabama

February 17, 1911

Petition for mandamus ex parte M. B. Byrd, the Judge of the Circuit Court, to show cause why he should not permit James S Gardner to be released on bail. Writ denied.

McClellan J., dissenting.

H. A Pearce, pro se.

SIMPSON J.

This is a petition for a mandamus to the judge of the circuit court to show cause why he should not permit James S. Gardner to be released from custody on executing a bail bond.

The petition alleges that said Gardner was convicted of the offense of obtaining money under false pretenses, at the fall term, 1910, of the circuit court, and sentenced to a term of four years in the penitentiary; that said Gardner gave notice of an appeal to this court, whereupon the sentence was suspended, and the court fixed the amount of bail at $1,000; and that, after the adjournment of said court, the judge thereof refused to allow said defendant to be released on bond, and so instructed the sheriff.

The respondent, waiving service, answers, admitting the facts set forth in the petition, except that he denies that the order setting aside the order for bail was made by the judge; and states that it was made by the court, and not by the judge.

Chapter 162 of the Code of 1907, treats of "Appeal and Writ of Error." Article 1 of said chapter treats of "Appeal," and article 2 of "Writ of Errors." Section 6249 of article 1 provides that "when any question of law is reserved in case of felony and it shall be made known to the court that the defendant desires to take an appeal to the Supreme Court, judgment must be rendered against the defendant, but the execution thereof must be suspended pending the appeal and the defendant held in custody," etc.; and section 6250, in the same article, provides for admitting to bail defendants convicted of a misdemeanor, and there is no section in said article 1 providing for bail in case of a conviction for felony. Section 6262, in article 2, originally provided for bail only in cases of conviction for a misdemeanor, but by act approved August 24, 1909, said section was amended so as to allow bail in all cases where the imprisonment does not exceed five years, and directs that "the judge or court must also direct the clerk of the court in which conviction was had to admit the defendant to bail," etc. Acts 1909, p. 62.

It is evident that the "judge or court" mentioned refers to the Supreme judge or court issuing the writ of error.

This section, as amended, stands in the article just as if it had been originally so worded, and remains still a part of the article in regard to writ of error, having no application to a case in which an appeal has been taken.

The title at the beginning of each section is not a part of the section, and the mere title being changed cannot affect the divorcement of the section from the article in which it is included, especially while article one has a section unrepealed, providing distinctly to whom bail shall be granted in case of appeal. In the case of State ex rel. Reynolds v. Weaver, 52 So. 638, this court properly held that the defendant, having been sentenced to imprisonment for 15 years, was not entitled to bail, which he would not have been under either section. The court did not pass upon the propositions involved in this case.

The writ of mandamus is denied.

DOWDELL, C.J., and MAYFIELD, SAYRE, and SOMERVILLE, JJ., concur.

McCLELLAN J. (dissenting).

The basis of the writer's disagreement with the prevailing view in this proceeding cannot be better stated than by setting opposite each other Code,§ 6262, and the amendatory act of August 24, 1909 (Acts Sp. Sess. 1909, p. 62), and by italicizing such words in each as unmistakably evince the legislative intent to confer the right to bail in cases within the terms of the amendatory act as respects the degree or duration of the punishment on persons convicted who appeal from the judgment of guilt, and not to restrict the right, as formerly, to cases where writ of error is the mode employed to invoke review of that judgment:

6262. (4331) (4520) (4988) In case of misdemeanor, defendant bailed.--If the conviction is for an offense which is punishable by a fine, or by imprisonment in the county jail, or by hard labor for the county, the judge or court awarding the writ must also direct the clerk of the court in which the conviction was had to admit the defendant to bail in a sum to be prescribed by such judge or court, with sufficient sureties, conditioned for his appearance at the next term of the court in which the conviction was had, to abide such judgment as may be rendered on the writ of error.

No. 111) An act (H. 266 To amend section 6262 of the Code of Alabama.

Be it enacted by the Legislature of Alabama, that section 6262 of the Code of Alabama be amended so as to read as follows: 6262. Defendant's Bail on Appeal.--If the conviction is for an offense which is not punished capitally or by imprisonment for a term not exceeding five years, the judge or court must also direct the clerk of the court in which the conviction was had to admit the defendant to bail in a sum which may be prescribed by the court with sufficient sureties, conditioned for his appearance at the next term of the court in which the conviction was had and from term to term thereafter, to abide such judgment as may be rendered on the appeal, and the provisions of this act shall also apply to convictions already had in the courts in this state.

Approved August 24, 1909.

In State ex rel. Reynolds v. Weaver, 52 So. 638, it was expressly ruled, construing the amendatory act, that its intent was "to confer the right to bail pending appeal upon all save two classes of defendants. * * *" (Italics supplied). Indeed, this interpretation was, as readily appears, but the reiteration of the terms of the amendatory act.

Code, § 6262, before amendment, bore this caption of heading "In case of misdemeanor, defendant bailed." The body of the statute plainly limited the right to bail to cases where writ of error issued under the authority of Code, § 6258. Indeed, in the last two lines of section 6262, it was provided that the...