Newsome v. Scott

• Decision Date: 18 June 1921
• Docket Number: (No. 2169.)
• Citation: 151 Ga. 639,107 S.E. 854
• Parties: NEWSOME v. SCOTT, Sheriff.
• Court: Georgia Supreme Court

151 Ga. 639

107 S.E. 854

NEWSOME

v.SCOTT, Sheriff.

(No. 2169.)

Supreme Court of Georgia.

June 18, 1921.

(Syllabus by the Court.)

Error from Superior Court, Screven County; A. B. Lovett, Judge.

Habeas corpus by Roscoe Newsome against C. H. Scott, Sheriff. The writ was discharged, and petitioner brings error. Reversed.

M. R. Lufburrow and Boykin & Hollingsworth, all of Sylvania, for plaintiff in error.

Overstreet & Overstreet, of Sylvania, for defendant in error.

GEORGE, J. Roscoe Newsome was arrested on a warrant charging him with a violation of the prohibition laws of this state. After a hearing before a justice of the peace, sitting as an examining or committing magistrate, he was committed to jail without bail, for the offense of manufacturing intoxicating liquors. He applied to the judge of the superior court for the writ of habeas corpus, alleging that he had tendered suitable and sufficient bail and that the committing magistrate had refused to allow it. Upon the hearing, the judge of the superior court ordered that the prisoner be remanded and retained in the custody of the sheriff, and that the writ be discharged. To this order and judgment Newsome excepted.

Prior to the act of the General Assembly approved March 28, 1917 (Acts Ex. Sess. 1917, p. 18, § 23), the manufacture of alcoholic or intoxicating liquors in this state was a misdemeanor. By the act referred to the manufacture of such liquors was declared to be a felony, punishable by confinement in the penitentiary for not less than one year nor longer than five years. The plaintiff in error contends that in felony cases less than capital, the defendant is, before indictment, entitled to bail as a matter of right, and that the granting of bail in such cases does not rest in the discretion of the court. His secondary contention is that, if the granting or refusal of bail in such cases rests in the discretion of the committing court, that discretion was flagrantly abused under the facts of the case. The sheriff contends to the contrary on both propositions. The main question has not been before the courts of last resort of this state for adjudication. Before the organization of the Supreme Court, and before the adoption of our first Code, Judge R. M. Charlton held (see State v. Howell, R. M. Charlt. 120) that the prisoner who was charged with having in his possession a counterfeit bank bill with intent to pass the same in this state, which at that time was a felony punishable by imprisonment at hard labor for any period of time not exceeding 15 years, was not as a matter of right entitled to bail before indictment, and remanded the prisoner to the custody of the sheriff. The case is not binding as authority, but is persuasive, and has been cited with apparent approval by the Supreme Court several times, though the exact question therein involved has not, as stated above, been before the Supreme Court for adjudication.

It has been held by the Supreme Court, and seems now to be settled law, that a defendant in a criminal case, after trial and conviction, is not entitled to bail as a matter of right, but that the granting or refusal of bail, pending the disposition of his motion for new trial or of his case on appeal, rests in the sound discretion of the court. In Corbett v. State, 24 Ga. 391, it was held that the superior courts in this state have the same power, in relation to bail in criminal cases, as the Courts of King's Bench in England. Pending final determination of his motion in arrest of judgment Corbett was denied bail, upon the ground that the case was not bailable at law after a verdict of guilty had been rendered. This judgment was reversed, but it was held that the granting or refusal of bail rested in the sound discretion of the court. In Lester v. State, 33 Ga. 192, a capital case, it was held broadly that the granting or refusal of bail in criminal cases is a matter resting in the sound discretion of the court, to be exercised or not according to the facts of each particular case. Lester was indicted for murder, but upon his trial the jury was unable to agree, and a mistrial was declared. Thereafter he moved the court to be admitted to bail. The presiding judge refused to admit the prisoner to bail. In Vanderford v. Brand, 126 Ga. 67 (2), 54 S. E. 822, 9 Ann. Cas. 617, it was held:

"Where a person who was indicted for the crime of rape was found guilty with a recommendation to mercy, and was sentenced to the penitentiary for 20 years, and thereupon, after refusal of a new trial, filed a bill of exceptionsbringing the case to this court, he was not entitled as matter of right to demand that he should be admitted to bail; but whether bail should be allowed him or not was a matter within the sound discretion of the presiding judge."

In the Vanderford Case the court was called upon to construe section 1077 of the Penal Code of 1895 (section 1104 of the Penal Code of 1910). That section in part reads as follows:

"The bill of exceptions thus filed shall operate as a supersedeas, upon the plaintiff in error complying with the fallowing terms: Where the offense is bailable, the defendant shall enter into a recognizance before the clerk, " etc.

It was held that the expression "where the offense is bailable, " as used in this section, meant where it was bailable in the sound discretion of the presiding judge. in the opinion in the Vanderford Case it was said:

"There is a wide difference in the situation of a person accused of a crime before and after he is convicted. Before he is convicted, he is detained in custody or required to give bail to insure his presence at the trial, and to abide its results. While in some jurisdictions it is held that the finding of a bill of indictment raises a presumption against him, in Georgia the presumption of innocence remains with him even through the trial. But after he has been tried and convicted, there is no longer any presumption that he is innocent. On the contrary, if he seeks to obtain a new trial, the presumption is in favor of the legality of the conviction, and the burden of showing error is upon him."

In the late case of Crumley v. Gibbs, 149 Ga. 119, 99 S. E. 297, it was held that—

"Where a person who was indicted for the crime of murder was convicted of voluntary manslaughter, he was not entitled as a matter of right, pending his motion for new trial, to demand that he should he admitted to bail; but whether bail should be allowed him or not was a matter within the sound discretion of the presiding judge."

In that case the court had under consideration an act of the General Assembly approved August 17, 1916 (Acts 1916, p. 157). Sections 1 and 2 of the act are as follows:

"Section 1. * * * It shall be the right of any person convicted of a crime in this state which is bailable, under the law, and in which case a motion for new trial shall have been filed as provided by law, to give a supersedeas bond immediately upon the filing of such motion for new trial, without having to wait for the signing or filing of a bill of exceptions in such case.

"Sec. 2. * * * The judge of the court having jurisdiction of such case shall immediately upon the approval and filing of a motion for new trial therein, assess the amount of the bond referred to in the preceding section, which shall be approved in the same manner as supersedeas bonds in criminal cases are now approved in this state."

In the course of the opinion, by Atkinson, J., it was said:

"The statute employs the word 'bailable, ' which was similarly employed in the older statute. Pen. Code, § 1104. But as that word was construed in Vanderford v. State, supra, so should it be construed in the act of 1916 as referring to a case that was bailable in the sound discretion of the trial judge."

In Maddox v. State, 18 Ga. App. 712, 90 S. E. 377, and Nobles v. State, 18 Ga. App. 713, 90 S. E. 377, both misdemeanor cases, the Court of Appeals held that after verdict the granting or refusal of ball was within the discretion of the trial judge. Thus it will be seen that the general rule in this state is that in all criminal cases the granting or refusal of bail after verdict is a matter resting in the sound discretion of the trial court. Capital offenses are bailable only before a judge of the superior court, and the granting or refusal of bail in all capital cases is peculiarly within the discretion of the judge of the superior court. Pen. Code (1910), § 958; Jernagin v. State, 118 Ga. 307.¹ It is true that in West v. Colquitt, 71 Ga. 559, 51 Am. St. Rep. 277, Chief Justice Jackson said that the right to give bail on reasonable terms is a right guaranteed by both the Constitution of the United States and the Constitution of Georgia, and that a party accused of every "bailable" offense shall have the "inestimable privilege" of giving security for his attendance at court, and shall not be imprisoned if he can give security for a reasonable sum of money for his appearance. That was a case in which the sureties on a recognizance to produce the body of the prisoner to answer...