Ex parte Thompson

• Decision Date: 03 March 1931
• Docket Number: 3 Div. 694.
• Citation: 132 So. 865,24 Ala.App. 213
• Parties: EX PARTE THOMPSON.
• Court: Alabama Court of Appeals

132 So. 865

24 Ala.App. 213

EX PARTE THOMPSON.

3 Div. 694.

Court of Appeals of Alabama

March 3, 1931

Original petition of Ed L. Thompson for habeas corpus to fix bail pending an appeal.

Writ denied.

BRICKEN P.J., dissenting.

Brassell & Brassell, of Montgomery, for petitioner.

Thomas E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

SAMFORD J.

The petitioner in this case was convicted in the circuit court of Macon county of robbery and sentenced to serve a term of ten years in the penitentiary. From the judgment of conviction appeal was taken to this court, and, acting under section 3241 of the Code of 1923, the judge who presided at the trial fixed petitioner's bail at $15,000. The bail not being presently furnished, the trial judge entered an order transferring petitioner to the county jail in Montgomery county and into the custody of the sheriff of said county.

Acting under section 4310 of the Code of 1923, petitioner addressed a petition to Hon. Leon McCord, judge of the Fifteenth judicial circuit, praying a writ of habeas corpus and alleging his inability to make the bail required; that he had no friends or relatives who were financially able to make his bond in the sum fixed; that the bail as fixed is excessive; and that a reasonable bail would be $2,000. Upon a denial of the writ and relief sought, before Hon. Leon McCord, as judge, etc. application is renewed in this court. All that is presented here is the petition and an affidavit made by petitioner that the statements and allegations made in the petition are true. The record discloses that the original amount of bail was fixed by Hon. S. L. Brewer, the judge who tried the case, had all the witnesses before him, saw the parties, heard them testify, and generally had the benefit of the trial. There is nothing to show that Judge McCord had the benefit of any witness other than the affidavit of petitioner. We have before us exactly what was before Judge McCord, which, simply stated, is: A conviction for robbery, one of the highest offenses known to the law; a sentence of ten years in the penitentiary; an appeal from the judgment and suspension of sentence; bail fixed by the judge trying the case at $15,000; petitioner's inability to make the bond required; petitioner's asserted ability to make a bond in the sum of about $2,000.

Under section 3241 of the Code of 1923, defendant is entitled to be admitted to bail in a sum to be fixed by the judge (Italics ours). Our Constitution (Const. § 16) is not the basis for Code, § 3241, supra, and the constitutional provision as to the right to bail is before conviction and not afterwards. That part of section 16 which reads, "Excessive bail shall not in any case be required," relates to those cases in which bail is guaranteed by the first part of the section.

The allowance of bail after conviction is statutory and indeed did not obtain until recent years, except in misdemeanor cases. Acts 1911, pp. 113, 626. This statute and the subsequent amendment fixing the term for which bail should be allowed at ten years, (§ 3241 supra) placed a grave responsibility and a great discretion on the trial judge in fixing the sum to be named in the bail bond. In fixing the amount of bail in this class of cases, the question of the guilt or innocence of defendant is eliminated; guilt has already been determined. The amount must be necessity depend largely upon the circumstances of the particular case, having in view the gravity of the offense, the length of the sentence, the character and standing of the defendant, and the likelihood of defendant's appearance to answer the charge as well as defendant's financial ability and the financial ability of his friends. 6 Corpus Juris, 960 (178). Bail after conviction was never designed to take the place of the sentence, but to be such a sum as will hold defendant to the sentence upon affirmance of the judgment. The discretion should be exercised with great caution, to the end that the defendant will appear to answer the penalty.

This court may review the fixing of bail by the circuit judge, but only where his discretion has been abused. 6 Corpus Juris, 965 (185).

In this case there is nothing to convince us that the trial judge abused his discretion in fixing the amount of bail and on the bare facts as disclosed by this record we hold that $15,000 is a reasonable amount to be fixed as bail pending an appeal in this case.

Writ denied.

RICE, J., concurs in conclusion.

BRICKEN P.J. (dissenting).

This petition is properly before this court. Sections 3241 and 3368, Code 1923.

It is ascertained by the petition, the allegations of facts therein being sworn to and undisputed, that petitioner has been convicted of a felony, and his punishment fixed at...