Ex parte Herndon

• Decision Date: 18 October 1920
• Docket Number: A-3704.
• Citation: 192 P. 820,18 Okla.Crim. 68
• Parties: EX PARTE HERNDON.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

192 P. 820

18 Okla.Crim. 68

EX PARTE HERNDON.

No. A-3704.

Court of Criminal Appeals of Oklahoma

October 18, 1920

Syllabus by the Court.

The Constitution of this state (article 2, § 8), providing "All persons shall be bailable by sufficient sureties except for capital offenses when the proof of guilt is evident, or the presumption thereof is great," has reference only to those cases in which the accused has not yet had a trial, and applies to all persons prior to conviction, but does not refer to cases wherein a conviction has been had in a court of competent jurisdiction.

A "capital offense" is one where the punishment may be death.

The provision of our Code of Criminal Procedure (section 6105 Rev. Laws) excepting from the right to bail pending appeal one under sentence of life imprisonment is not unconstitutional.

John Herndon was convicted of murder, and he appeals. On application to be allowed bail pending decision on appeal. Denied.

Giddings & Giddings, of Oklahoma City, for petitioner.

S. P Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for respondent.

DOYLE P.J.

The petitioner, John Herndon, having been convicted in the district court of Greer county of murder and sentenced to imprisonment for life at hard labor, appealed from the judgment and sentence, and said appeal is now pending in this court. In this proceeding he makes application to this court to be allowed bail pending its decision on his said appeal.

The petitioner bases his application for bail upon section 8 of the Bill of Rights (Const. art. 2, § 8), which provides:

"All persons shall be bailable by sufficient sureties, except for capital offenses, when the proof of gui lt is evident, or the presumption thereof is great."

That the jury having by their verdict assessed his punishment at imprisonment for life, the offense is no longer capital, and by the terms of the constitutional provision he cannot be deprived of the privilege of the right to bail, and that the provision of the statute (section 6105, Rev. Laws) excepting from the right to bail pending appeal one under sentence of death or life imprisonment is to that extent in violation of the Constitution.

In our Penal Code it is provided that any person convicted of murder shall suffer death or imprisonment at hard labor in the penitentiary for life at the discretion of the jury. Section 2319, Rev. Laws. The offense may therefore be punished with death, but it is not necessarily so punishable. A "capital offense" is one where the punishment may be death. The offense, then, is a capital one within the meaning of the Constitution.

Our Code of Criminal Procedure provides: "After conviction of a crime or public offense, not punishable by the death or incarceration for life in the state prison, a defendant who sues out a writ of error for revision of the judgment or takes an appeal from the judgment rendered against him, shall, on furnishing bond, be admitted to bail as provided by sections 5994 and 5995." Section 6105, Rev. Laws.

"In all cases where the sentence is for a crime not bailable the defendant shall be confined in the penitentiary pending the appeal." Section 5995, Rev. Laws.

The constitutional provision in the Bill of Rights has reference only to the cases in which the accused has not had a trial, and applies to all persons prior to conviction, but does not refer to cases wherein a conviction has been had in a court of competent jurisdiction.

In Ex parte Mingle, 2 Okl. Cr. 708, 104 P. 68, it is said:

"The Constitution grants power to the legislative branch of the government to provide by proper legislation the manner in which appeals in criminal cases may be taken. The language of the law is plain and unambiguous, and provides that the appeal shall suspend execution until the matter is determined upon the appeal, and the defendant in the meantime shall be confined in the state prison. The defendant is entitled to the advantage of every right which the law secures to him before his conviction is made final. He has the right of appeal, and in this class of crimes, while his appeal is pending, although confined in the penitentiary, it is his privilege not to be held at hard labor. To this extent only the pendency of his appeal stays the execution of the judgment and sentence. We do not see that this provision of the law deprives the petitioner of any constitutional right. The offense is not bailable, and he stands committed by a court of competent jurisdiction."

With slight variations the common form of constitutional guaranty of bail is that all persons shall be bailable by sufficient sureties, except for capital offsuretiesenses, when the proof is evident or the presumption of guilt is great.

In Ex parte Voll, 41 Cal. 29, 14 P. States Rep. 29, the petitioner convicted of manslaughter claimed admission to bail as a right under the Constitution of California (article 1, § 7) providing that:

"All persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident, or the presumption great."

The statute of that state provided that a person charged with such an offense as manslaughter may be admitted to bail before conviction "as a matter of right," but after conviction "as a matter of discretion" merely. It was insisted that the language of the Constitution was sufficiently broad to embrace not only a case where no trial had been had, but equally a case in which a conviction of an offense less than capital in degree had occurred; that the Constitution did not regard the particular stage of the proceedings which the prosecution may have reached, but only the grade of the offense involved as being less than the capital grade. Upon these contentions the Supreme Court said:

"We are of opinion that the Constitution, in declaring bail to be a matter of right, contemplated only those

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