Ex parte Tyler
| Decision Date | 26 June 1909 |
| Parties | Ex parte TYLER. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Section 1, art. 2, c. 29, p. 334, Sess. Laws 1905, provides that The Criminal Court of Appeals will not allow the writ of habeas corpus to determine whether or not the action of a clerk of the district court in refusing to approve a bail bond is unreasonable, arbitrary, and oppressive. A party should present his grievance in this regard to the trial court or judge thereof.
Prior to filing the petition in error in this court, only the question of excessive bail will be considered on habeas corpus. When an appeal is perfected pending the appeal this court will on proper showing make all necessary orders relating to bail.
In the construction of a statute, where the court finds in a particular clause an expression not so definite in its import as those used in other parts of the same statute, if upon review of the whole act the real intention of the lawmaking power can be collected from the definite and extensive expressions used in other parts of the same statute, a construction should be adopted that will give effect to the definite expressions used, unless such a construction contravenes some other potent provision of law.
A defendant should have the advantage of every right which the law secures to him before his conviction should be made final. The aforesaid section further provides that: "If no bond be given, the appeal shall stay the execution of the judgment, but the defendant shall be confined in the county jail until the case is finally disposed of." The plain purpose of this provision is to stay the execution of the judgment pending an appeal, to reverse, vacate or modify the same, also, while proper proceedings are being taken within the time allowed, to make and serve a case and within the time fixed for filing the petition in error in the Criminal Court of Appeals.
Where defendant fails to give notice of his intention to appeal, he waives his right to have the execution of judgment stayed pending the appeal, and where notice of appeal has been given, if the defendant fails to make and serve a case within the time allowed, or fails to file said case with the papers in the case, or fails to file his petition in error in the Criminal Court of Appeals within the time fixed by the court he thereby waives his right to have the execution of judgment stayed pending his appeal, and, upon such failure or default the commitment should issue.
Where the court finds an expression not so definite in its import as other parts of the statute, if upon review of the whole the real intention can be collected from the definite expressions, a construction should be adopted that will give effect to the definite expressions used unless it contravenes some other potent provision of law.
The petition sets forth: That P. F. Tyler was on the 21st day of April, 1909, in the district court of Blaine county, Okl convicted of the crime of forgery, and was on the 22d day of April, 1909, sentenced by the court to be imprisoned in the state penitentiary for a term of three years at hard labor, to all of which proceedings petitioner excepted, and prayed an appeal to the Criminal Court of Appeals. The court allowed 60 days to make and serve a case-made, fixing the amount of his bail bond in the sum of $2,000, and made an order requiring said bond to be given within six days. The petitioner on the 28th day of April presented to the clerk of the district court of Blaine county his bail bond in proper and legal form, and in the sum of $2,000, with one W. B. Piper, a citizen of Blaine county, as surety, also a verified qualification, showing that said surety justified in the sum of $15,000, over and above all his exemptions, debts, and liabilities. That said district clerk refused to approve said bail bond for the reason that said surety, among other things, listed a cash item of $10,000 on deposit in the Blaine County Bank; also, that all necessary steps have been taken to perfect his appeal to the Criminal Court of Appeals; that on April 23d he filed his affidavit with the clerk of said district court to obtain the evidence and record of said case at the costs of the county by reason of his poverty. That, on said date, the court made an order granting said request. That he in good faith expects to perfect said appeal within the time allowed by the court. That Geo. A. McArthur, the sheriff of Blaine county and W. B. Skeen, his deputy are now transporting said petitioner to the state penitentiary at McAlister. That said petitioner as a matter of right under the law should be released upon the said bail bond. That, pending his appeal without bail, he should be confined in the county jail of Blaine county, Okl. That said sheriff and deputy sheriff are unlawfully detaining said petitioner at a place other than the county jail of Blaine county. Petitioner prayed the issuance of a writ of habeas corpus, commending said sheriff and deputy sheriff to bring the body of the said petitioner before the Criminal Court of Appeals; that the matters and things therein alleged may be duly inquired into; and, after due examination of the same, that he be discharged on said bail bond, or, failing so to do, that he be remanded to the county jail of Blaine county pending the determination of his appeal by this court. Said petition was duly filed with this court on April 30, 1909, and a writ of habeas corpus was on said date issued and made returnable on the 1st day of May, 1909, which return day by order made was extended to May 3, 1909. Service was had on said respondents at Oklahoma City on the day the writ issued. On May 3, 1909, respondents appeared before this court, having with them the body of said petition, together with said writ, and made return showing that by virtue of an order of commitment issued to the sheriff of Blaine county by the clerk of the district court of Blaine county on April 29, 1909, said sheriff, assisted by his said deputy, was transporting petitioner to the state penitentiary; that while on their way at Oklahoma City they were served with the writ issued in this case. Evidence was heard and petitioner was given 20 days to serve and file briefs, and respondent 10 days to file answering briefs. On June 7th said cause was submitted.
A. J. Lowary and Frank McGuire, for petitioner.
Chas. Moore, Asst. Atty. Gen., and H. N. Boardman, Co. Atty., for respondents.
DOYLE, J. (after stating the facts as above).
In the first question presented this court is asked to review the action of the clerk of the district court of Blaine county in refusing to approve the bail bond offered by petitioner, and that said bond be examined and approved by this court. This question will not be considered by the court in this case. If a party feels himself aggrieved by the action of a clerk of the district court in refusing to approve a bail bond, and complains that the action of the clerk is unreasonable, arbitrary, and oppressive, he should present his grievance to the trial court or judge thereof. Before filing the petition in error in this court, only the question of excessive bail will be considered. However, when an appeal is perfected, and the crime is a bailable one, pending the appeal, this court will on proper showing make all necessary orders relating to bail.
The important question involved in this case on the uncontroverted facts...
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