Ex Parte Heath

• Decision Date: 31 March 1910
• Citation: 126 S.W. 1031,227 Mo. 393
• Parties: Ex parte HEATH.
• Court: Missouri Supreme Court

126 S.W. 1031

227 Mo. 393

Ex parte HEATH.

Supreme Court of Missouri, Division No. 2.

March 31, 1910.

BAIL (§ 44) — BAIL PENDING APPEAL FROM CONVICTION OF MURDER.

Const. art. 2, § 24 (Ann. St. 1906, p. 160), providing that all persons shall be bailable, except for capital offenses, when the proof is evident or the presumption is great, relates to the time before conviction; so that whether or not the case of one who has been convicted of murder in the first degree, and had his punishment assessed by the jury at life imprisonment, instead of death, under the discretion given them by Rev. St. 1899, § 1817 (Ann. St. 1906, p. 1262), as amended by Act March 18, 1907, p. 236, be considered a capital one, section 2702, excepting from the right to bail, pending appeal in a criminal case, one under sentence of death or life imprisonment, is not unconstitutional.

Appeal from Circuit Court, Lawrence County.

Application of Charles Heath for writ of habeas corpus to be admitted to bail pending appeal. Denied.

M. E. Benton and Geo. Hubbert, for petitioner. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for respondent.

GANTT, P. J.

On the 15th day of December, 1909, by the judgment of the circuit court of Lawrence county, the petitioner was sentenced, upon a verdict of guilty of murder in the first degree, to the penitentiary of this state for a period of his natural life from and after the 14th day of December, 1909. From that judgment and sentence he prayed and was granted an appeal to this court, and the said appeal in contemplation of law is now pending in this court.

On the 5th day of February, 1910, the petitioner applied to this court for an order of supersedeas staying the execution of said sentence pending his said appeal in this court. And the supersedeas was granted and served on the sheriff of Lawrence county, and accordingly the prisoner is in the custody of the said sheriff waiting the determination of the said appeal. On said 5th day of February, 1910, petitioner also filed his petition in this court for a writ of habeas corpus to require the sheriff to produce his body in this court, and that he might be admitted to bail pending his said appeal. The writ issued and was returnable on the 12th of February, 1910. To that petition, the sheriff on the 8th of February 1910, made his return in due form, stating among other things that he had the said petitioner in his custody and imprisoned in the county jail of Lawrence county by virtue of the judgment and sentence of said Lawrence county circuit court of date December 15, 1909, by which defendant was sentenced to the penitentiary for the period of his natural life from December 15, 1909, for the offense of murder in the first degree; that he also held petitioner by virtue of the said order of supersedeas staying the execution of said sentence pending said appeal. Said return was accompanied by a duly certified copy of the said judgment and sentence of the circuit court. Upon the return being filed, it was ordered by the court that the petitioner and the Attorney General each submit to this court within 10 days their suggestions and brief as to whether the petitioner was entitled to bail under the laws of this state. And this having been done, the application is now before us for determination. The petitioner bases his application for bail upon section 24 of the Bill of Rights, or article 2 of the Constitution of this state (Ann. St. 1906, p. 160), which provides: "That all persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great." His contention is that the assessment of punishment and sentence for life imprisonment repealed and effectually removed not only all weight of evident proof and great presumption of capital guilt, but established the fact that he is not guilty of a "capital offense," and that there is no possibility of his capital punishment until the existing judgment and sentence has been reversed on appeal; that there is no longer room for contention that this court is now dealing with a petitioner whose status is that of one liable to punishment by death and that he has not been convicted of a capital offense; that a capital crime is one for which the punishment of death alone is inflicted, and in support of this contention cites us to the definition of capital offense in Bouvier's Dictionary, p. 284; 6 Cyc. p. 348; Dusenberry's Case, 97 Mo. 504, 507, 11 S. W. 217; Walker v. State, 28 Tex. App. 503, 13 S. W. 860; Anderson's Dictionary, p. 148. He concedes that so long as "capital" punishment may be inflicted under a pending charge it is considered a capital offense with reference to bail, but insists that when once a trial has occurred and his punishment assessed at less than death then the charge is merged in the sentence, and it is not and cannot be a capital offense, or nonbailable as such so long as the judgment remains in force and unreversed. On the other hand, the Attorney General denies the right of petitioner to bail on two grounds: First, that the right of appeal did not exist at common law, and is now enjoyed solely by reason of statute, and the privileges and immunities ancillary thereto, including a stay of execution and bail pending appeal, are likewise of statutory creation, and are limited by the number and kind given by statute, and in support of this contention relies upon section 2702, Rev. St. 1899 (Ann. St. 1906, p. 1591), which provides: "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 proceeding 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 said court or judge." The only preceding sections pertinent to this discussion is section 2698, in these words: "No such appeal or writ (of error) 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 the 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." Section 2703 provides: "The recognizance shall in cases of felony, not excepted in the last preceding section be conditioned that the defendant shall appear in the Supreme Court," etc. Accordingly, it is argued that since the punishment of petitioner has been assessed at imprisonment in the penitentiary for life, this court is without authority to admit petitioner to bail. It is evident that petitioner is not entitled to bail under section 2702 supra, because by its very terms, he is excepted from its provisions as he is under sentence of imprisonment for life in the penitentiary and such is the purport also of sections 2698 and 2703.

It is to be observed that section 2702 does not except those who have been found guilty and sentenced for a capital offense, but specifies that where the defendant is under sentence of death or imprisonment in the penitentiary for life he is not entitled to bail pending his appeal or writ of error. So that if we look to the statute for authority to bail, clearly the petitioner is not entitled to it under the statute. There is no constitutional right of appeal, and in allowing appeals from sentences in criminal causes, it was entirely competent for the Legislature in providing for an appeal to provide also for bail pending the same, or to refuse bail as it deemed best. Recurring, now, to the contention of the petitioner that he is entitled to bail by virtue of section 24 of the Bill of Rights, and that it was not within the power of the Legislature by the enactment of section 2702 to deprive him of the right of bail, let us consider the language of the Constitution. It is "That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident and the presumption is great." The question, then, is, has petitioner been convicted of a capital offense within the meaning of the Constitution. In Ex parte Dusenberry, 97 Mo. 504, 11 S. W. 217, this court unanimously defined a "capital offense" as one which is punishable — that is to say, liable to punishment — with death. This is the substance of the definitions by the lexicographers, both professional and lay. The offense then is a capital one within the meaning of the Constitution. In that case, the petitioner had been indicted for rape, and our statute, then, as now, provided that a person convicted of that charge should suffer death or be punished by imprisonment in the penitentiary not less than five years in the discretion of the jury. Rev. St. 1879, § 1253 (section 1837, Rev. St. 1899). By our statute murder in the first degree has always been punishable by death, until the act of March 18, 1907, p. 236, which amended section 1817, Rev. St. 1899, by adding the words "or be punished by imprisonment in the penitentiary during their natural lives and the jury shall decide which punishment shall be inflicted." So that as amended it now reads: "And persons convicted of murder in the first degree shall suffer death or be punished by imprisonment in the penitentiary during their natural lives and the jury shall decide which punishment shall be inflicted." Ex parte Dusenberry, supra, was reaffirmed in State v. Gray, 100 Mo. 524, 13 S. W. 806, and in State ex...