Ex parte Carey.

• Decision Date: 30 December 1924
• Docket Number: No. 25772.,25772.
• Citation: 267 S.W. 806
• Parties: Ex parte CAREY.
• Court: Missouri Supreme Court

267 S.W. 806

Ex parte CAREY.

No. 25772.

Supreme Court of Missouri, in Banc.

December 30, 1924.

Habeas corpus by Frank Carey for admission to bail. Petitioner ordered Iet to bail.

W. C. Irwin, of Jefferson City, for petitioner.

Jesse W. Barrett, Atty. Gen., for ford, Warden of Penitentiary.

RAGLAND, J.

Habeas corpus. The petitioner was convicted of the crimes of burglary and larceny in the criminal court of Greene county and sentenced to the state penitentiary for a term of 12 years. From such judgment he was in due course allowed an appeal to this court, and the appeal is in contemplation of law now pending here. After the appeal was granted the trial court, on the petitioner's application, ordered that he be admitted to bail pending the appeal, upon a recognizance, with good and sufficient sureties, in the sum of $10,000. Subsequently and before a recognizance was entered into, the court set the order aside. Thereupon the sheriff of Greene county, pursuant to the judgment and sentence, conveyed the petitioner to the penitentiary and delivered him to the warden, in whose custody he now is.

The petitioner did not apply to the court in which the judgment of conviction was rendered, or to the judge thereof, for a stay of execution pending the appeal. Nor has he applied to this court, or to any judge there: of, for such a stay. He simply asks that he be admitted to bail and predicates the right thereto on the sole ground of the pendency of an appeal from the judgment and sentence under which he is held in confinement.

I. In Missouri there is no constitutional right to bail after conviction; the provision guaranteeing bail, except in capital cases, relates to persons who are accused, before trial and conviction. Ex parte Heath, 227 Mo. 393, 126 S. W. 1031. Nor is there any constitutional right of appeal in this state. Such right is enjoyed solely by statute, and the privileges and immunities ancillary thereto, including stay of execution and bail pending the appeal, are likewise of statutory creation, and consequently limited to the number and kind given by statute. Ex parte Heath, supra; State v. Leonard, 250 Mo. 406, 157 S. W. 305.

The statutory provisions which govern the staying of executions, and the letting of the defendant to bail, pending an appeal from a judgment In a criminal cause, are embodied in the following sections, Revision of 1919:

"Sec. 4088. No such appeal or writ shall stay or delay the execution of such judgment or sentence, except in capital cases, unless the Supreme Court, or a judge thereof, or the court in which the judgment was rendered, or the judge of such court, on inspection of the record, shall be of opinion that there is probable cause for such an appeal or writ of error, or so much doubt as to render it expedient to take the judgment of the Supreme Court thereon, and shall make an order expressly directing that such appeal or writ of error shall operate as a stay of proceedings on the judgment; but in capital cases the order granting the appeal shall operate as such stay absolutely,

"Sec. 4089. If the court in which the judgment was rendered, or the judge thereof, refuse such order, he shall nevertheless suspend the execution of the judgment, except as to fine and costs, if necessary, to allow sufficient time to make application to the Supreme Court, or a judge thereof, for such order.

"Sec. 4090. When any order to stay proceedings shall be made by the Supreme Court, or by any judge in vacation, the same, together with the writ of error, if any, shall be filed with the clerk of the court in which the judgment was rendered, who shall furnish the party filing the same with a certificate thereof, together with a copy of the order.

"Sec. 4091. If the defendant in the judgment so ordered to be stayed shall be in custody, it shall be the duty of the sheriff, if the order were made by the court rendering the judgment, or upon being served with the clerk's certificate and a copy of the order, to keep the defendant in custody without executing the sentence which may have been passed, to abide such judgment as may be rendered upon the appeal or the writ of error.

"Sec. 4092. In all cases where an appeal or writ of error is prosecuted from a judgment In a criminal cause, except where the defendant is under sentence of death or imprisonment in the penitentiary for life, any court or officer authorized to order a stay of proceedings under the preceding provisions may allow a writ of habeas corpus, to bring up the defendant, and may thereupon let him to bail upon a recognizance, with sufficient sureties, to be approved by such court or judge."

If the construction of these sections was one of first impression the writer would. unhesitatingly hold with the Attorney General, who raises the question, that a convicted defendant cannot be let to bail under section 4092, pending an appeal from a judgment of conviction, unless and until a stay of execution has been granted under the provisions of section 4088. The two sections are in pari materia; they must be read together and both given effect. If section 4092 authorizes the bailing of a defendant regardless of whether he is entitled to a stay of execution under section 4088, then it completely nullifies the plain mandate of the latter section. It seems beyond cavil that, unless a defendant is entitled to a stay of execution, he is not entitled to bail, which is in effect a stay. According to my further reading of the sections just mentioned, a stay of execution, though a condition precedent to bail, does not in and of itself entitle the defendant to bail. He may have an absolute right to a stay of execution under section 4088 and yet bail may be withheld in the discretion of the court. According to the plain language of section 4092, the authority therein...