Hanson v. Gladden

• Decision Date: 12 April 1967
• Citation: 426 P.2d 465,246 Or. 494
• Parties: Lee Roy HANSON, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 465

426 P.2d 465

246 Or. 494

Lee Roy HANSON, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Submitted on Briefs Jan. 18, 1967.

Decided April 12, 1967.

Lee Roy Hanson, in pro. per.

David H. Blunt, Asst. Atty. Gen., Salem, and Robert Y. Thornton, Atty. Gen., Salem, for respondent.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and REDDING, JJ.

REDDING, Justice pro tem.

Petitioner appeals from an order of the circuit court for Marion county, denying and dismissing his petition for a writ of habeas corpus.

On July 22, 1965, petitioner was convicted by jury of the crime of murder in the second degree and he was sentenced to a term of 25 years in the Oregon State Penitentiary. Petitioner is presently prosecuting an appeal from said judgment of conviction and seeks to be admitted to bail pending such appeal.

On June 21, 1966, petitioner filed in the circuit court for Marion county a petition for a writ of habeas corpus. It is the refusal of the circuit court for Multnomah county, in which he was tried, to grant bail pending the appeal which gives rise to the habeas corpus proceedings filed in the Marion county circuit court.

The question presented here is whether the petitioner has a statutory or constitutional right to bail pending his appeal to this court from a conviction of second degree murder.

This court recognizes that with certain exceptions the defendant in a criminal case who appeals from a conviction is entitled to be admitted to bail. Oregon Constitution, Article I, Section 14; ORS 140.030; Delaney v. Shobe, 218 Or. 626, 628, 346 P.2d 126 (1959).

The exceptions are stated in the Oregon Constitution, Article I, Section 14, as follows:

'Offences (sic), except murder, and treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong.'

Substantially the same exceptions are enumerated in ORS 140.020, which provides:

'If the proof or presumption of the guilt of the defendant is evident or strong, he shall not be admitted to bail when he is charged with murder in any degree, with treason or with the infliction upon another of a personal injury likely to produce death under such circumstances that, if death should ensue, the offense would be murder in any degree.'

This court has stated that the right to bail on appeal is not unqualified. In Thomas v. Gladden, 239 Or. 293, 295, 397 P.2d 836 (1964), this court said:

'* * * He is entitled to bail as a matter of right unless the crime for which he has been convicted is one of those made not bailable by ORS 140.020 * * *.'

ORS 140.020 specifically prohibits the granting of bail to a defendant charged with murder in any degree if the proof or presumption of the guilt of the defendant is evident or strong. Having been found guilty, the presumption of the guilt of the petitioner is evident and strong. Article I, Section 14 of the Oregon Constitution as well as ORS 140.020 clearly indicate petitioner has no right to bail pending his appeal from a conviction for second degree murder.

It is well recognized that neither the 8th Amendment nor the 14th Amendment of the United States Constitution requires that everyone charged with a state offense must be given his liberty...