Vanderford v. Brand

• Decision Date: 27 July 1906
• Citation: 54 S.E. 822,126 Ga. 67
• Parties: VANDERFORD. v. BRAND, Judge. SAME. v. STATE.
• Court: Georgia Supreme Court

54 S.E. 822

126 Ga. 67

VANDERFORD.

v.BRAND, Judge.

SAME.

v.STATE.

Supreme Court of Georgia.

July 27, 1906.

1. Mandamus—Admission to Bail.

Where a case has been brought to this • court by bill of exceptions complaining of a refusal to grant a new trial to a person convicted of a felony, if the presiding judge grants a supersedeas, but declines to admit the accused to bail, whether this court has jurisdiction to issue a writ of mandamus to compel him to do so, quaere.

2. Bail—Right to Admission to Bail—Conviction—Appeal.

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 exceptions bringing 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.

[Ed. Note.—For cases in point, see vol. 5, Cent. Dig. Bail, § 145.]

(Syllabus by the Court.)

Error from Superior Court, Gwinnett County; C. H. Brand, Judge.

R. L. Vanderford was convicted of crime and brings error. Affirmed. He also applied for mandamus to C. H. Brand, judge, to compel him to admit him to bail. Application dismissed.

Vanderford was indicted for rape, and on the trial was convicted. The jury recommended him to mercy, and he was sentenced by the court to the penitentiary for the term of 20 years. He made a motion for a new trial, which was overruled, and he presented a bill of exceptions which was certified, and at a later date filed. He applied for and obtained to be issued the writ of habeas corpus, alleging that he was illegally detained, without the privilege of giving bail, and he prayed that he be granted the right to do so. The presiding judge, after hearing the application, denied it. Thereupon the applicant applied to this court for a mandamus to compel the judge to admit him to bail. A rule nisi issued, and in answer to it the judge denied that the defendant was entitled to bail as a matter of right, and set forth facts tending to show that as a matter of discretion the denial was proper. He alleged that he had granted an order superseding the judgment and sentence, but refused to grant the application for bail. The applicant also filed a direct bill of exceptions to the judgment refusing bail.

J. A. Perry, J. C. Flanigan, M. D. Irwin, and Jno. R Cooper, for plaintiff in error.

S. J. Tribble, Sol. Gen., for the State.

LUMPKIN, J. (after stating the facts). This court has no original jurisdiction, but is a court alone for the trial and correction of errors. Const art. 6, § 2, par. 5 (Civ. Code 1895, § 5836). So far as material to the present case, the Supreme Court is declared to have authority, "To exercise appellate jurisdiction, and that only, and in no case to hear facts or examine witnesses. * * * To grant any writ necessary to carry out any purpose of its organization, or to compel any inferior tribunal or officers thereby to obey its orders. * * * To punish for contempt. * * *" Civ. Code 1895, § 5498. It is in no respects a court of first instance. It may issue writs necessary to carry out the purposes of its organization, and compel obedience to its orders by inferior tribunals or officers, such as mandamus to compel the clerk of the trial court to complete or send up a transcript of the record (Civ. Code 1895, § 5538); or to compel a judge to sign a bill of exceptions, if he unlawfully refuses to do so (Taylor v. Reese, 108 Ga. 379, 33 S. E. 917); or to compel the granting of a supersedeas to stay the execution of a judgment in a criminal case while it is pending on bill of exceptions to this court (Spann v. Clark, 47 Ga. 369). This is not an exhaustive statement, but is illustrative of the fact that writs of this character are issued as ancillary to the jurisdiction of this court, and not as original proceedings. In this case, upon the filing of the bill of exceptions, the presiding judge granted a supersedeas. It does not appear how the question of granting or refusing bail is necessarily involved in the consideration and determination of the questions raised by the bill of exceptions, nor why the case cannot as well be heard and determined here whether the defendant is in jail or has given bond. It may well be doubted whether this court has any jurisdiction to grant the relief prayed, or whether the defendant has pursued the proper remedy by applying for a mandamus, even if his application for bail had been erroneously refused. The decision in Hudson v. Parker, 156 U. S. 277, 15 Sup. Ct. 450, 39 L. Ed. 424, is relied on by counsel for the applicant; but the ruling there made was that, under the acts of Congress conferring certain powers upon the Supreme Court of the United States, and under a rule which had been adopted by that court, one of its justices had authority to allow a writ of error to a circuit or district court in a case of a conviction for an infamous, but not capital, crime, and could sign the citation, grant the supersedeas, and order the prisoner, after citation served, to be admit-ted to ball; and that if the district judge declined so to admit to bail because in his opinion the order was without authority of law, he could be compelled to do so by the Supreme Court by writ of mandamus. An examination of the acts of Congress and of the rule promulgated by that court will show that the situation was entirely different from that before us. Justices Brewer and Brown dissented. But as the applicant has brought the case before us both by this application for mandamus, and also by bill of exceptions, we are not inclined to rest our decision merely on the question above referred to.

At common law, the granting or refusing of bail was in all cases a matter which was held to rest in the sound discretion of the court. 2 Hale's Pl. Cr. 129; King v. Portier, 13 Que. K. B. 251, 1 Am. & Eng. Ann. Cases, 10, 12, and note; 3 Enc. Pl. & Pr. 200. And this rule has been generally adopted in those states where the matter has not been made the subject of constitutional or statutory provisions. 3 Am. & Eng. Enc. L. (2d Ed.) 664. This does not refer to committing magistrates. The exercise of this discretion at common law depended to some extent upon the gravity of the offense, bail being more readily granted in cases involving misdemeanors than in those involving felonies. Prior to the organization of the Supreme Court, it was held by the superior court judges that they had "a discretionary power (governed by the circumstances of the case) to bail in all cases whatsoever." See State v. Abbot, R. M. Charlt. 244 (where the matter is elaborately discussed); State v. Wicks, R. M. Charlt. 139; State v. Howell, R. M. Charlt. 120. In most of the United States the question of the right to bail has been made the subject of constitutional provisions, and the right In such states is controlled by them. 3 Am. & Eng. Enc. L. (2d Ed.) 665; 5 Cyc. 68. In this state the only constitutional declaration on the subject is that "Excessive ball shall not be required." Civ. Code 1895, § 5706. This does not determine any right to bail, or in what cases it exists, but only prohibits excessiveness in amount, where bail is allowed. Turning to the statutes of the state on the subject, we find the following sections bearing upon the point now being considered: Pen. Code 1895, § 922, with reference to proceedings to commit, provides that "If bail is tendered and accepted, no regular commitment need be entered, but a simple memorandum of the fact of bail being taken." Section 932 provides that after arrest under a bench warrant "any judicial officer, or the sheriff of the county where the accusation was...