In re Boulter

• Decision Date: 28 March 1895
• Citation: 5 Wyo. 263,39 P. 875
• Parties: IN RE BOULTER
• Court: Wyoming Supreme Court

39 P. 875

5 Wyo. 263

IN RE BOULTER

Supreme Court of Wyoming

March 28, 1895

PETITION for writ of habeas corpus. Collingwood Boulter was convicted in the district court for Laramie county of the crime of manslaughter, and was sentenced to imprisonment in the penitentiary for a term of six years. The execution of the sentence was suspended upon notice of the prisoner's intention to apply for a writ of error. The district court refused upon his application to admit the prisoner to bail and by this proceeding he sought that privilege.

Petition remanded and dismissed.

Ralph E. Esteb, for petitioner, insisted that the statute was in conflict with sec. 14, art. 1, of the constitution.

J. C Baird, prosecuting attorney, and B. F. Fowler, attorney general, for respondent, the sheriff of Laramie county, contended, that the prisoner is not entitled to bail after his conviction of a felony, and cited R. S., sec. 3326; Hampton v. State, 42 O. St., 401; State v. Anselm, 43 La. Ann., 195; Ex parte Ezell, 40 Tex. 451; Ex parte Schwartz, 2 Tex. App., 75; State v. Connor, 2 Bay (S. C.), 34; Ex parte Smallman, 54 Cal. 35; Ex parte Voll, 41 Cal. 30; Ex parte Marks, 49 Cal. 680; Davis v. State, 6 How. (Miss.), 399; State v. Ward, 2 Hawks, 445; Corbett v. State, 24 Ga. 391; Ex parte Dyson, 25 Miss. 356; State v. Levy, 24 Minn. 362; Hurd Hab. Corp., 444 et seq.)

GROESBECK, CHIEF JUSTICE. CONAWAY and POTTER, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

The petitioner was convicted of the crime of manslaughter in the district court for Laramie county, and after the verdict of the jury, he made a motion for a new trial in that court which was overruled. He objected to the imposition of sentence against him pending proceedings in error, which he announced he was about to institute, but this objection was overruled, and he was sentenced to imprisonment in the penitentiary for the term of six years. Thereupon he gave notice of his intention to apply for a writ of error and at his request the district court suspended the execution of his sentence until the next term of that court. His application for bail pending his appeal, which has not yet been perfected, as no writ of error has been applied for, was refused by the district court, and by habeas corpus he seeks to be admitted to bail pending his proceedings in error in this court, which he asserts he will prosecute.

The statute applicable to his case reads as follows:

"Whenever a person shall be convicted of a felony, and the judgment shall be suspended as aforesaid, it shall be the duty of the court to order the person so convicted into the custody of the sheriff, to be imprisoned until the case in error be disposed of." (1st Par. Sec. 3326, Rev. Stat.)

The petitioner claims that this statute, which was enacted prior to the adoption of the constitution of the State, under the territorial regime is repugnant to the Bill of Rights, which contains the following provision: "All persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great." (Art. 1, Sec. 14, Const., first clause.) He insists that this language is broad enough to include all persons convicted of a felony less than capital, after as well as before conviction of the offense, and that notwithstanding the statute, he is entitled to bail during the pendency of the cause on error.

Under the common law, bail in felony cases was not granted as a matter of right, but the power to admit to bail was lodged in the court of King's Bench and the judges thereof and was a matter of discretion, and not a matter de jure.

There are English cases where bail has been granted after conviction of a felony, but they present extraordinary circumstances, where there was some doubt as to the law of the case or of the prisoner's guilt. In most of the States of the Union, aided by express legislation, which has been termed "the more merciful conclusion," bail is granted after conviction, when a sound and cautious discretion prompts, though not so freely as before verdict. Bishop's New Crim. Proc., sec. 253. Our statute takes away this discretion in cases of conviction of felony, but in misdemeanor cases, the trial court is directed to suspend the execution of the sentence only where the convicted person enters into a recognizance with such security as the court may require, conditioned that such person so convicted and sentenced of a misdemeanor shall appear at the next term of the court from term to term, until the case in error be determined, and abide the judgment or sentence of the court. Rev. Stat., sec. 3328. In cases of felonies, the Supreme Court or the judge allowing the writ of error, orders the suspension of the execution of the sentence until such case shall be heard and determined in the Supreme Court, and this rule applies also to misdemeanors. Ibid., secs. 3355-56. Another statute of more recent enactment provides that "All offenses shall be bailable under the laws of Wyoming, by sufficient sureties, except capital offenses, when the proof is evident or the presumption great; Provided, That no person shall be admitted to bail after indictment has been found against him charging a capital offense." Ch. 23, Sess. Laws, 1890. This statute did not repeal any existing law in express terms. With the exception of the proviso which limited the right of bail in capital cases when the proof is evident or the presumption great to proceedings prior to the finding of the indictment, it is substantially the guaranty of the constitution. Such then was the state of the law at the time of the admission of the State into the Union. Misdemeanors were bailable offenses even after conviction, felonies less than capital were bailable until conviction and sentence and capital offenses were bailable until the finding of the indictment. The discretion of the judges, sometimes used in England after conviction in felony cases, but cautiously exercised, was withdrawn and bail before conviction except in capital cases became a matter of right. It is contended that the statutory rule was changed by the general words of the constitution and that "all persons" except those accused of capital offenses where proof is evident or the presumption great, are entitled to bail as a matter de jure after as well as before conviction. If this be true, there is no limit to the power to bail in felonies less than capital, and the rule of the common law absolutely denying bail after the sentence has gone into effect or execution is abrogated, and we would witness the strange spectacle of convicts in the penitentiary released on bail during the pendency in this court of proceedings in error, or perhaps even where no proceedings in error had been instituted, and where the application to bail is capriciously made. We are not willing to attribute such a construction to the words of the constitution permitting bail, as there must be a time when the right to bail must absolutely cease. The common law rule withholding the right to bail after the sentence had gone into execution, was a check and a wholesome one on the discretion of the court or its judges, and it will not be seriously contended that the constitution has invented a new rule in this respect. The object and purpose of the constitutional provision is to allow bail as a matter of right and to take away the discretion of the judges. It first found root in the ordinance of 1787 creating the Northwest Territory and from that source found its way into the supreme law of most of the States with varying phraseology. Street v. State, 43 Miss. 1.

Some of the constitutions of the States relating to bail contain an express provision that the right to bail terminates upon conviction; in others the language is similar to ours. There are but few cases directly in point, and it would seem that the power to admit to bail after conviction where there is no statutory or constitutional provision granting such a right, has been rarely invoked. The earliest case in this country is that of State v. Ward, 9 N.C. 443, 2 Hawks 443. The defendant was indicted for passing counterfeit money, and after his conviction and sentence there arose a point on his prayer to be bailed pending appeal. The judge delivering the opinion said upon this point:

"I think that the clause in the constitution, which declares that all prisoners shall be bailable by sufficient securities, unless for capital offenses, where the proof is evident or the presumption great, relate to capital cases only, that is, to prisoners in capital cases, the meaning is evidently prisoners before conviction; for, after conviction, there is no such thing as proof and presumption; all is certainty, and that the word prisoners must be understood alike in each member of the sentence, that is, prisoners before conviction; and persons remain convicted of the offense, notwithstanding the appeal; for the appeal is for matter of law only; the facts remain unaffected by the appeal, unlike the cases of appeal for matters of fact as well as for matters of law, and where a new trial de novo is given on appeals from the county to the superior courts, or from a single justice to the county court, where the appeal annihilates the verdict and judgment both."

In petty misdemeanors after conviction, the appeal was held to be a matter of right, but that indiscriminate right of going at large after an appeal upon giving bail, would render the criminal law a dead letter. The decision of this court would seem to be in harmony with our statutes before the constitution was operative, to allow bail as a matter of right after conviction of a misdemeanor, and denying bail after conviction of a felony, and the construction of the clause in the...