Young v. Russell

• Decision Date: 26 February 1960
• Citation: 332 S.W.2d 629
• Parties: Seavy YOUNG, on Relation of Danlel B. Boone, Appellant, v. Solon F. RUSSELL, Sheriff and Jaller of Jefferson County, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 629

332 S.W.2d 629

Seavy YOUNG, on Relation of Danlel B. Boone, Appellant, v. Solon F. RUSSELL, Sheriff and Jaller of Jefferson County, Appellee.

Court of Appeals of Kentucky.

Feb. 26, 1960.

Daniel B. Boone, Henry A. Triplett, Louisville, for appellant.

John B. Breckinridge, Atty. Gen., Troy D. Savage, Asst. Atty. Gen., for appellee.

PALMORE, Judge.

Seavy Young, the appellant, being under detention by the appellee (Sheriff and Jailer of Jefferson County) following his indictment for willful murder, appeals from an order of the Jefferson Circuit Court refusing to release him on a writ of habeas corpus. Such an appeal is authorized by Sec. 429-1 of the Criminal Code of Practice.

Appellant was indicted on January 11, 1960, and arraigned the next day, whereupon he entered a plea of not guilty, moved for admission to bail, and was admitted to bail in the sum of $5,000, for which he posted bond immediately and was released. Later in the day his counsel received notice that the Commonwealth on the next morning would move the court to set aside the order and hold him without bail. The matter came of for hearing on January 13, 1960, but was continued to January 15, 1960, because the Commonwealth was not ready. At the hearing on January 15, 1960, the Commonwealth's motion was sustained and appellant was ordered to be held without bail. Petition for habeas corpus was filed in the same court, and the writ issued accordingly, on January 16, 1960. A hearing held on January 19, 1960, resulted in dismissal of the writ. All proceedings were before the same judge.

The questions involved on this appeal are:

(1) May an order admitting a defendant to bail after indictment be vacated or modified, after the bail is taken, by the court in which the prosecution is pending, so as to recommit the defendant, upon grounds other than those specifically provided by Criminal Code of Practice, Sec. 99?

(2) Is the evidence which may be considered on the hearing of a motion involving admissibility to bail limited to 'legal' evidence, so as to exclude direct use of the grand jury transcript and other pure hearsay?

and we have decided both of these questions in the affirmative.

In 6 Am.Jur. 100 (Bail and Recognizance, Sec. 99), it is said to be the general rule that 'an order granting bail is final and res adjudicata as to all questions except the amount. After the right has once been determined by an order in favor of the accused, the question has been regarded as closed so as to prevent reopening thereof to permit the prosecution to introduce evidence in rebuttal of that offered by the applicant.' Cited in support are State ex rel. Starritt v. Newman, 114 Okl. 228, 245 P. 999; Ex parte Marshall, 38 Ariz. 424, 300 P. 1011; and United States ex rel. Heikkinen v. Gordon, 8 Cir., 190 F.2d 16; all of which precedents are cited also in appellant's brief, as is 3 R.C.L. 31 (Bail and Recognizance, Sec. 35), which states the matters as follows:

'An order granting bail is res judicata and final as to the state and even as to the accused except as to the amount, which may be reduced upon appeal or otherwise. * * * After the right has once been determined by an order in favor of the accused, the question is closed and cannot be reopened in order to permit the prosecution to introduce evidence in rebuttal of that offered by the applicant.' Citing Ex parte Augustine, 33 Tex.Cr.R. 1, 23 S.W. 689, 47 Am.St.Rep. 17.

To the same effect see 8 C.J.S. Bail Sec. 47, p. 95, citing State ex rel. Starritt v. Newman, supra, in support.

Believing the rule as thus stated to be of questionable wisdom, we have undertaken an analysis of the cited authorities in search of its origin, that we may properly reappraise the question.

In Ex parte Augustine, the supporting authority for the R.C.L. reference, the defendant was indicted in 1876 for murder. In 1882, on account of illness, he was admitted to bail in the sum of $10,000. Soon thereafter, being unable to secure the attendance of its witnesses and unable to obtain further continuances, the state caused the indictment to be dismissed. The defendant was indicted again in 1891 for the same offense and was denied bail. On appeal it was held that he was entitled to readmission to bail in the amount of $10,000. Though an applicable section of the Texas Code of Criminal Procedure, art. 187, specifically provided that a person once admitted to bail and reindicted for the same offense should be readmitted to bail, the court said that independently of the statute the principle was 'fully sustained by the authorities,' citing Well's Res Judicata and Stare Decisis, Sec. 421; Church on Habeas Corpus; and Ex parte Jilz, 64 Mo. 205, 27 Am.Rep. 218.

We have not examined the work by Wells, but in Church, The Writ of Habeas Corpus (Bancroft-Whitney Co., 1886), page 520, it is said, after pointing out that the doctrine of res adjudicata has no application to habeas corpus, for which reason such cases were not appealable, that there is an exception where a person is discharged by habeas corpus: '* * * the rule has almost uniformly been, independent of statutory provisions, that the judgment of discharge, whether erroneous or not, and being in favor of personal liberty, is final and conclusive, and not subject to appeal or writ of error. The law is thus laid down in the well-considered and valuable case of Ex parte Jilz.'

In Ex parte Jilz, 1876, the defendant, after commitment on a sentence for criminal abortion, secured his discharge by writ of habeas corpus on the ground that the court imposing the sentence had exceeded its jurisdiction. Without further ado he was jailed again on a re-issue of the same commitment from which he had been discharged. In an original habeas corpus proceeding before the Supreme Court of Missouri (the reported case) the was again discharged.

From an examination of these sources it would appear that unless an admission to bail and a release on a writ of habeas corpus are the same thing the rule which flowered forth in Ex parte Augustine is rooted in a foreign substance, and is a transmutation.

It is provided by Article VI of the Habeas Corpus Act of 1689 (31 Car. II) as follows:

'VI Persons Set At Large Not To Be Recommitted But By Order Of Court--Penalty--And for the prevention of unjust vexation by reiterated commitments for the same offense: Be It Enacted By The Authority Aforesaid, that no person or persons, which shall be delivered or set at large upon any habeas corpus, shall at any time hereafter be again imprisoned, or committed for the same offense, by any person or persons whatsoever, other than by the legal order and process of such court wherein he or they shall be bound by recognizance to appear, or other court having jurisdiction of the cause * * * (emphasis added).

With striking fidelity to the original draftsmanship that great landmark has been preserved in our law by Sec. 422 of the Criminal Code of Practice:

'A person delivered upon a writ of habeas corpus shall not again be imprisoned or committed for the same offense except by the legal order or process of the court wherein he shall be bound by recognizance to appear or of some other court having jurisdiction of the same cause.'

Obviously the purpose...