Tijerina v. Baker, 8582

• Docket Nº: No. 8582
• Citation: 438 P.2d 514, 78 N.M. 770, 1968 NMSC 9
• Case Date: January 16, 1968
• Court: Supreme Court of New Mexico

Page 514

438 P.2d 514

78 N.M. 770

Reles Lopez TIJERINA et al., Petitioners, v. J. E. BAKER, Warden of the New Mexico State Penitentiary and Bennie Naranjo, Seriff of Rio Arriba County,

Respondents.

No. 8582.

Supreme Court of New Mexico.

Jan. 16, 1968.

Charles Driscoll, Lorenzo E. Tapia, Allbuquerque, Joseph A. Roberts, Neil C. Stillinger, Charles S. Solomon, John A. Mitchell, Santa Fe, for petitioners

Alfonso G. Sanchez, Dist. Atty., Patricio Sanchez, Asst. Dist. Atty., for respondents.

Boston E. Witt, Atty. Gen., amicus curiae.

OPINION

PER CURIAM.

Reies Lopez Tijerina, Cristobal Tijerina, Ramon Tijerina, Rose Tijerina, Baltazar Martinez, Baltazar Apodaca, Cirilio Garcia, Tobias Leyba, Jerry Nolls, Abelicio Moya, Moises Morales, Esequiel Dominguez, Victor Dominguez, Salomon D. Velasquez, Tony Valdez, Jose Madril, Juan Valdez, Reyes Hugh Lopez Tijerina, Jr., alfonso Chavez and Geronimo Borunda filed an original habeas corpus proceeding in the Supreme Court seeking their release from custody because of an asserted unlawful revocation of the bail bonds under which they had been freed pending a preliminary hearing.

At the outset of the habeas corpus hearing, counsel for Ramon Tijerina and Baltazar Martinez advised the court that these two defendants have not been re-arrested and are not in custody. They ask, however, that their right not to be taken into custody under the order revoking their bonds be determined.

It is well settled that an actual or physical restraint is required to authorize relief by habeas corpus. Annot., 14 A.L.R. 344. Section 22-11-1, N.M.S.A.1953, so far as pertinent, provides:

'Every person imprisoned or otherwise restrained of his liberty * * * may prosecute a writ of habeas corpus * * * to obtain relief from such imprisonment or restraint, if it proves to be unlawful.'

The writ, insofar as it pertains to Ramon Tijerina and Baltazar Martinez will, accordingly, be discharged as improvidently issued.

Petitioners, charged by criminal complaint with several counts of kidnapping in violation of § 40A-4-1, N.M.S.A.1953, a capital offense, were arrested and confined without bail. Section 13, Article II of the New Mexico Constitution provides:

'All persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great. * * *'

After a hearing upon the defendants' motion to be admitted to bail, at which the defendants were present and represented by counsel, Judge Joe Angel, district judge of the Fourth Judicial District, sitting as a committing magistrate, found that 'the proof is evident and the presumption great that a capital offense has been committed by the following persons: Juan Valdez, Tobias Leyba, Reies Lopez Tijerina and Baltazar Apodaca.' These four were denied bail; cash bond in the sum of $2500 or property bond of $5000 was fixed for the other defendants, all of whom were later released after posting such bonds. The four who had been denied bail filed a motion seeking a reconsideration of their motion and asserted in substance that, notwithstanding the finding that the proof was evident or the presumption great that they had committed a capital offense, the magistrate had discretion to admit them to bail. At a hearing they persuaded the magistrate that he did have such discretion, whereupon he ordered them admitted to bail.

Thereafter, a jailer at the Rio Arriba County Courthouse, and a principal witness against the defendants or some of them, was murdered and, upon application by the district attorney and at an ex parte hearing, the magistrate ordered the bonds of all of the defendants revoked and issued a warrant for their arrest and an order that they be confined in the state penitentiary for safekeeping pending the further order of the magistrate.

The basic issue to be determined in this proceeding is whether, under these circumstances, the magistrate had a right to revoke the bonds of these petitioners, under which they had been at liberty. That general issue presents the questions: (1) having fixed the amount and accepted bail, is that order res judicata and not subject to revision or revocation for any reason; (2) if the bonds can be revoked under proper circumstances, can they be revoked without notice and a hearing at which the defendants are present and represented by counsel; and (3) does the court have discretion to grant bail to one for whom he has found the proof evidence or the presumption great that such person committed a capital offense?

In a habeas corpus proceeding concerning the right to bail, the court is required to 'review the proceedings or action of the committing magistrate.' Section 22-11-23, N.M.S.A.1953.

We cannot agree with petitioners' contention that the action by the magistrate in fixing the amount and admitting the defendants to bail is res judicata nor, in our opinion, is the reasoning in State ex rel. Starritt v. Newman, 114 Okl. 228, 245 P. 999, and other cases relied upon by petitioners, persuasive. Kentucky's highest court, in Young v. Russell, 332 S.W.2d 629, examined and analyzed the reasoning and basis of each text and decision relied upon by petitioners and concluded that all of those authorities and precedents 'are the progeny of Ex parte Augustine, a wayward and fertile ghost which ought to be laid to rest.' We agree with the Kentucky court's appraisal of those authorities. Compare Ex parte Hammock, 78 Ala. 414 (1885).

Young v. Russell, supra, then went on to say:

'It is our opinion that the court having jurisdiction of a criminal cause has the same control of its orders with respect to bail as it has over its other interlocutory orders in the proceeding, that this is an inherent power not depending on special statute * * *. An order entered on a motion for bail is not a final order, and is not appealable. * * *'

People ex rel. Calascione v. Ramsden, 20 A.D.2d 142, 246 N.Y.S.2d 84; Carbo v. United States, 82 S.Ct. 662, 7 L.Ed.2d 769.

Generally, provisions with regard to admitting to bail in criminal cases are based upon the idea that a person accused of crime shall be admitted to bail until adjudged guilty by the court of last resort to him. However, this right is not absolute under all circumstances. In People v. Ramsden,supra, the New York court said that after commencement of trial, the court has a common law power to revoke a defendant's bail and remand him to jail. That inherent power of the court was extended in Carbo v. United States,supra, until such time as the case is finally disposed of. United States v. Rice, 192 F. 720 (S.D.N.Y.1911), relied upon a power of the court to revoke bail which was said to be inherent in its duty to insure the efficient administration of criminal justice. See United States v. Bentvena,288 F.2d 442 (2d Cir., 1961).

If the court has inherent power to revoke bail of a defendant during trial and pending final disposition of the criminal case in order to prevent interference with witnesses or the proper administration of justice, the right to do so before trial seems to be equally apparent under a proper set of facts. Since there was no hearing or evidence taken on the motion to revoke the bonds, the record does not disclose any proof of facts or circumstances which motivated the magistrate in revoking them. That being so, there is nothing before us which presents an issue as to the sufficiency of the proof to authorize revocation of the bonds. We are concerned with the procedure by which the bonds were revoked and these petitioners confined in the penitentiary. The record is clear that the order of revocation and the issuance of a warrant for their arrest were made ex parte, and without notice to or an opportunity to the petitioners to be heard.

The Constitution gives to one accused of crime the right of personal liberty pending trial, except under certain circumstances. We have found no decisions in this or any other jurisdiction concerning the procedure for revocation of a bond. As long ago as Ex parte Lucero, 23 N.M. 433, 168 P. 713, L.R.A.1918C 549, this court said that a suspended sentence gives a defendant his right of personal liberty and that due process requires a notice and hearing before such suspension can be revoked. See also Blea v. Cox, 75 N.M. 265, 403 P.2d 701; State v. Peoples, 69 N.M. 106, 364 P.2d 359. Upon this principle, it would seem that due process would also require notice and an opportunity to be heard before bond can be revoked and a defendant remanded to custody.

This third issue presented by this proceeding concerns only Juan Valdez, Tobias Leyba, Reies Lopez Tijerina and Baltazar Apodaca, against whom the magistrate expressly found the proof evident and the presumption great that they had committed a capital offense with which they were charged. We are required to resolve the question as to whether, under the record before us, the magistrate has power to grant bail to those four defendants.

Under our holding in Ex parte Towndrow, 20 N.M. 631, 151 P. 761, the charge of a capital offense raises a rebuttable presumption that the proof is evident and the presumption great that the defendant so charged committed the capital offense, and one so accused is not entitled to bail until that presumption is overcome. At a hearing before the magistrate at which the defendants were present and represented by counsel, the magistrate, after hearing evidence, determined that all of the defendants, except the above four, were entitled to bail. In denying bail to these four defendants, the magistrate did not rely alone on the presumption but found as a fact from the evidence adduced that the proof was evident and the presumption great that these four had committed a capital offense. The four were, accordingly, denied bail. Upon motion for reconsideration of the application for bail as to these four defendants, the magistrate, after legal arguments, allowed them bail. Except for a contrary record, it...