In re Schriber

• Decision Date: 11 March 1911
• Citation: 114 P. 29,19 Idaho 531
• Parties: In Re HENRY SCHRIBER and EARL D. HAGGERTY
• Court: Idaho Supreme Court

114 P. 29

19 Idaho 531

In Re HENRY SCHRIBER and EARL D. HAGGERTY

Supreme Court of Idaho

March 11, 1911

Original application for writs of habeas corpus. After hearing, it is ordered that the petitioner, Schriber, be admitted to bail by the district judge; and the application of Haggerty denied, and he is remanded to the custody of the sheriff of Bear Lake county.

Application of the petitioner Haggerty denied.

John A Bagley, K. I. Perky, T. L. Glenn and E. J. Hornibrook, for Plaintiffs.

The defendant Schriber should be released upon this application for a writ of habeas corpus. He was only sentenced to pay a fine of $ 250, and under the statute (sec. 8104) he is entitled to bail as a matter of right. The judge had absolutely no authority to annual or set aside the order admitting him to bail.

In the case of the defendant Haggerty, the common-law rule making it discretionary with the court or judge to admit the defendant to bail after conviction pending appeal was abrogated by the provisions of art. 1, sec. 6, of our constitution. We think that the constitution should be construed literally, and held to mean that all persons, except in capital cases, should be entitled to bail until the court of last resort has affirmed the verdict of guilty; that it was the intention of the framers of our constitution to permit all persons, excepting those especially excepted, to be admitted to bail until they had been finally found guilty by the court of last resort that the only discretion the court or judge to whom application for bail is made should have is to fix the amount of the bail which he or it deems necessary to secure the attendance of the defendant and have him surrender himself in execution of judgment in case the judgment of conviction is finally sustained. (In re Neil, 12 Idaho 749, 87 P. 881; In re Hoge, 48 Cal. 3; People v. Perdue, 48 Cal. 553; In re Adams, 81 Cal. 167, 22 P. 547; Lybecker v. Murray, 58 Cal. 189.)

D. C. McDougall, Attorney General, J. H. Peterson and O. M. Van Duyn, Assistants, for the State.

Sec. 6, art. 1, of our constitution was bodily borrowed from the constitution of California, and as early as 1871 the California supreme court, in the case of Ex parte Voll, 41 Cal. 29, passed upon the said section, and held that the same applied only to cases where application for bail was made before conviction in the lower court was had; that the said section had no application whatever to bail pending appeal to the supreme court. This case of Ex parte Voll has been ever since rigidly adhered to by the supreme court of California in a long line of cases. This was the well-known construction placed upon this section at the time it was adopted by the framers of our constitution, and under the well-known rule of this court, the framers of our constitution adopted along with the said section the interpretation that had been placed thereon by the supreme court of California.

Our legislature also borrowed from California, sec. 8104, Rev. Codes, providing that, "After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: First, as a matter of right when the appeal is from a judgment imposing fine only; secondly, as a matter of discretion in all other cases." The constitutionality of this section was before the court of California in the Voll case, and in that case the said supreme court reconciled the said section with the provision of the constitution above referred to.

AILSHIE, Presiding J. Sullivan, J., concurs.

OPINION

AILSHIE, Presiding J.

Two petitions have been filed for writs of habeas corpus. In the one case it appears that Henry Schriber was convicted of a violation of the local option statute and was sentenced to pay a fine of $ 250, or in default thereof to be imprisoned in the county jail for one day for each two dollars of such fine. He thereupon took an appeal from the judgment and on application to the trial judge was admitted to bail.

Haggerty was likewise convicted of violation of the local option statute, and was sentenced to pay a fine, and also to serve a term of imprisonment in the county jail. On application to the trial judge he was granted a certificate of probable cause and was admitted to bail. The appeals were taken in these cases in June, 1910. Up to the present time, however, the records on appeal have not been filed in this court.

There has been apparently some delay in the matter of prosecuting the appeal. On the 1st day of March, 1911, Hon. Alfred Budge, judge of the district court, and from whose district these convictions were had, made an order revoking the previous order admitting both parties to bail, and directed the sheriff to arrest them and commit them to the county jail. The order recited that the defendants are not prosecuting their appeals with diligence and in good faith. Counsel for the parties insist that under the provisions of sec. 6 of art. 1 of the state constitution, all persons are bailable as a matter of right, except in capital cases, and that this is true both before and after conviction, provided an appeal is prosecuted.

Sec. 6, art. 1 of the constitution reads as follows: "All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great. . . ."

The constitution of California contains a like provision, and sec. 6 of art. 1 of our constitution was evidently adopted from the California constitution. As early as 1871, the supreme court of California in Ex parte Voll, 41 Cal. 29, passed upon this provision of the California constitution, and held that it applied to all persons...