86 Fla. 145 | Fla. | 1923
-Upon application of petitioner a writ of babeas corpus, addressed to tbe Sheriff of Jackson County,
The petition alleges that petitioner upon trial was convicted of assault with intent to commit murder in the second degree; that he thereupon filed a motion for new trial, but that the hearing of this motion has been continued and had not, at the time of the application for the writ, been passed upon, but was then -still pending and undisposed of; that because of a misunderstanding of petitioner as to whether this case would be considered at the first day of the term to which it was continued, he was not present when his name was called and his bond was estreated, but that he did appear during the term and the order of estreature was thereupon vacated, but that he nevertheless was committed to jail and was not allowed to give bond for his appearance; that the judge of the court, because of ill health, has gone away to a health resort for treatment for an indefinite stay.
The motion is for bail pending disposition of the case by the Circuit Court.
By certified copy of minutes of proceedings in the trial court, it is shown that previous to the trial petitioner had twice defaulted and failed to appear on the day the case was set for trial upon the charge resting against him, in accordance with the conditions of appearance bonds made and filed in the case by him, and such bonds had, because of such failures to appear, been estreated by the court.
By the Constitution of the State it is ordained that ‘ ‘ all persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great.” (Sec. 9, Declaration of Eights.) The Constitution also provides that the courts of the State shall be open so that a remedy may be afforded by due process of law to every person for any injury done him in his lands, goods, person or reputation, and that right and justice shall be administered without sale, denial or delay (Sec. 4, Declaration of Eights), and that no person shall be deprived of life, liberty or property without due process of law (Sec. 12, Declaration of Eights).
This court has said that "under our Constitution all persons are bailable by sufficient sureties as matter of absolute right, except for capital offenses where the proof is evident or the presumption great. Rigdon v. State, 41 Fla. 308, 26 South. Rep. 711. The Supreme Court of California, where there is a similar Constitutional provision, in the case of people v. Tinder, 19 Cal. 539, 81 Am. Dec. 77, speaking through Mr. Justice Field, said: "The admission to bail in capital cases, where the proof is evident or the presumption is great, may be made a matter of discretion, and may be forbidden by legislation, but in no other cases. In all other cases, the admission to bail is a right which the accused, can claim, and which no judge or court can properly refuse.”
If the person who is duly charged with a crime is denied
It may be that there are circumstances under which the right to bail in otherwise bailable causes would be forfeited by breach of prior bonds (6 C. J. Sec. 180, p. 962; Lee’s Case, No. 8, 180, 15 Fed. Cas. p. 136, 22 Leg. Int. 284, 6 Phila. 96). But this is not a case in which the facts warrant a resort to this principle. There may have been grounds for punishment for contempt, but there was no such conduct itpon the part of petitioner in the way of flagrant disregard of the court’s authority or effort to evade its processes as to forfeit his constitutional -right to bail during a recess of several weeks or for an indefinite period of the trial court.
The State relies on the doctrine that after conviction allowance of bail rests in. the judicial discretion of the trial court and takes the position that in this case this discretion
Petitioner will be allowed bail in the sum of $5,000.00 with good and sufficient surety with the usual conditions, to be approved by the Sheriff of Jackson County.
It is ordered.