United States v. Mulcahy

• Decision Date: 14 June 1946
• Docket Number: No. 312.,312.
• Parties: UNITED STATES ex rel. RUBINSTEIN v. MULCAHY, U. S. Marshal.
• Court: U.S. Court of Appeals — Second Circuit

155 F.2d 1002 (1946)

UNITED STATES ex rel. RUBINSTEIN v. MULCAHY, U. S. Marshal.

No. 312.

Circuit Court of Appeals, Second Circuit.

June 14, 1946.

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Leo C. Fennelly, of New York City (Leo C. Fennelly and George Wolf, both of New York City, of counsel), for petitioner-appellant.

John F. X. McGohey, U. S. Atty., of New York City (Irving H. Saypol, Keith Brown, and Samuel Rudykoff, Asst. U. S. Attys., all of New York City, of counsel), for respondent-appellee.

Before SWAN, CHASE, and CLARK, Circuit Judges.

PER CURIAM.

The increased bail was, we are told, by far the highest ever set in any criminal case in the Southern District of New York. The offense charged, though a serious one, is not punishable by penalties unusually severe. The urge to flee cannot be unusually great. The ties that bind the petitioner to his home were not shown to be unusually slight. So far as appears, the inference that the relator was planning to flee must be drawn from the fact that he possessed the material means to make that as possible as could ample means which he has made readily available.

Yet such ability to flee as that affords does not necessarily indicate a purpose to flee and he is entitled to the opportunity to secure his release pending trial on bail which is not excessive regardless of whether or not he can furnish the half million dollars at which it has been fixed. The purpose of bail before trial is to insure the presence of the accused when required without the hardship of incarceration before guilt has been proved and while the presumption of innocence is to be given effect. The reasonableness of the amount is to be determined by properly striking a balance between the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction under the circumstances surrounding each particular accused. Moore v. Aderhold, Warden, 10 Cir., 108 F.2d 729, 731; Connley v. United States, 9 Cir., 41 F.2d 49, 50; Bennett v. United States, 5 Cir., 36 F.2d 475. Consideration should be given to the seriousness of the crime charged, the past record and recent action of the accused as bearing upon his good faith in appearing for trial and his financial ability to procure bail. See United States v. Motlow, 7 Cir., 10 F.2d 657, 659; Barrett v. United States, 6 Cir., 4 F.2d 317. We believe the bail fixed in this case was excessive and that the restraint of the petitioner in default of furnishing it was unlawful.

His remedy by petition for a writ of habeas corpus after he was restrained was a proper one. See, Colyer v. Skeffington, D.C., 265 F. 17, 78, reversed on other grounds sub nom. Skeffington v. Katzeff, 1 Cir., 277 F. 129; People ex rel. Sammons v. Snow, 340 Ill. 464, 173 N. E. 8, 72 A.L.R. 798. Compare, Johnson v. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497. The court in habeas corpus proceedings may where excessive bail has been fixed in a criminal prosecution reduce it to a reasonable amount and enlarge the accused on bail so reduced. People ex rel. Deliz v. Warden of City Prison, 1st Dep't, 260 App.Div. 155, 21 N.Y.S.2d 435.

Order reversed and cause remanded with directions to grant the writ and fix reasonable bail to insure the relator's appearance in the criminal proceedings. If no additional facts are shown, such bail...