Ex parte Pettiford

• Decision Date: 24 June 1929
• Citation: 167 N.E. 154,97 Ind.App. 703
• Parties: Ex parte PETTIFORD.
• Court: Indiana Appellate Court

97 Ind.App. 703

167 N.E. 154

Ex parte PETTIFORD.

Appellate Court of Indiana, in Banc.

June 24, 1929.

Petition by Lewis Pettiford to be admitted to bail. Petition denied.

ENLOE, J.

Lewis Pettiford, the petitioner, was on the 10th day of June, 1929, in the circuit court of Delaware county, convicted of violating the liquor laws of this state, fined in the sum of $250, and sentenced to be imprisoned at the Indiana State Farm for the period of 75 days. He has served notice of his intention to appeal from said judgment of conviction, upon both the prosecuting attorney and the clerk of said court, and he now files this petition to be let to bail, pending such appeal, under the provisions of section 1 of chapter 121 of the Acts of 1929, p. 424.

Prior to the enactment of chapter 154 of the Acts of 1911 (Acts 1911, p. 410, §§ 2386-2390, Burns' 1926), there was no provision in our statute directing that persons who had been tried and convicted of violating our criminal law might be let to bail pending appeal. The matter of such persons being admitted to bail stood as at common law, and at common law letting to bail, after conviction, was a matter of grace, extended by the King through his Judges of the King's Bench, to the convicted party, in their sound discretion. It is fundamental that when a thing is a matter of grace, the party extending the grace has a right to prescribe the terms and conditions upon which such grace will be extended. The Legislature of this state is the “mouthpiece” of our King -the people-and by said chapter 121 the terms and conditions have been declared and fixed upon which such grace can be by us extended.

There is no constitutional right of the petitioner involved herein. The provision of our Constitution (section 17, art. 1) that “offenses, other than murder and treason, shall be bailable by sufficient sureties,” means that before trial, and while the presumption that the accused is innocent obtains, the accused, except when charged with treason or murder, may be let to bail. Ex parte Voll, 41 Cal. 29; Ex parte Dyson, 25 Miss. 356; Ex parte Heath, 227 Mo. 393, 126 S. W. 1031;State v. Ward, 9 N. C. 443; Ex parte Ezell, 40 Tex. 451, 19 Am. Rep. 32;In re Boulter, 5 Wyo. 263, 39 P. 875;In re Schriber, 19 Idaho, 531, 114 P. 29, 37 L. R. A. (N. S.) 693; 3 R. C. L. p. 15, § 14.

In the case of Ex parte Huffman, 181 Ind. 241, 104 N.E. 511, it was said: “This court has no power, aside from that given by the Act of 1911, to order convicted defendants admitted to bail, and the petitioner has not brought himself within the provisions of that Act.” In harmony with what was said as above by our Supreme Court, we say: We have no power, aside from the Act of 1929, supra, to admit a convicted person to bail pending his appeal. That act is the “King's declaration” of the terms and conditions upon which his grace may be extended, and is binding upon all.

Section 2 of the Act of 1911, supra, was amended by the Act of 1929, supra, so that said section now reads as follows: “Upon sentence being pronounced in any action where the penalty or part of it is imprisonment in any of the penal or correctional institutions...