— This is an application for admission to hail upon writ of habeas corpus.
The petition alleges that the petitioner is confined in the county jail of Twin Falls county, by reason of the refusal of the trial judge to admit him to bail; that he was convicted in the district court in and for said county on October 19, 1923, of a felony, and was sentenced to the penitentiary for a teiun of from one to fourteen years; that thereafter a certificate of probable cause was issued by the said judge, and notice of appeal to this court was served and filed, and also motion made in that court for a new trial, which is still pending; that application for bail was made pending the final determination of these matters, and was refused; that the amount of the fictitious
A writ was allowed, and the sheriff having the custody of the petitioner made return that he held him by virtue of said commitment to the Idaho State Penitentiary upon a felony charge, issued by said court. Upon this return, a hearing was had, at which time the sheriff asked and was granted leave to amend his return. A final determination of the cause was continued until such amended return was presented and petitioner given time to move against the same.
The amended return shows the following additional matter: That on July 5, 1921, petitioner plead guilty to a charge of issuing a check without sufficient funds or credit in the bank to pay the same, and was sentenced to, and did serve, a term of thirty days in jail; that on March 2, 1923, the petitioner was again arrested for issuing a check without funds, and was sentenced to pay a fine of $10 and costs, which he paid; that on May 1, 1923, he was found guilty of driving an automobile without a license, and fined $25 and costs.
The return further alleges that besides these offenses, petitioner had issued other worthless checks, but upon his representation and promise of future good behavior, such charges were not prosecuted. The facts relating to petitioner’s conviction and plea of guilty of other offenses set up in the amended return ai’e authenticated by the official court ’records of Twin Falls county.
Petitioner moves to strike from the return all matter not contained in or directly connected with the record of his conviction upon the felony charge, on the ground that it is immaterial and violative of his rights in the presentation of his application for this writ. It is insisted that the trial judge having issued a certificate of probable
It was held in Re Neil,
The provision of art. 1, sec. 6 of the constitution that “all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great,” has reference only to cases in which the party has not yet been tried, and applies to all persons prior to conviction, but has no reference to eases wherein a conviction has been had. Where a defendant appeals from a judgment which imposes a term of imprisonment, admission to bail as provided by C. S., sec.
Petitioner contends that the court, in considering’ whether a defendant is entitled to hail, is precluded from considering anything dehors the record in the particular court and case in which he has been convicted, and moves to strike from the amended return all matter relating to his conviction for other offenses.
The purpose of punishment for a breach of the law is to deter a person who has broken it from a repetition of his act, amd also to deter other persons from committing similar breaches. (16 0. J. 1351, sec. 3186, citing State v. Neil,
C. S., secs. 9041 and 9046, give to the trial judge in certain instances authority to suspend the execution of judgment, or to withhold passing judgment, upon such terms and for such time as he may prescribe. Manifestly, this and other humane provisions now generally recognized are not intended to apply to habitual criminals, or to a class of persons who indicate by their persistency in the
It would appear from the supplemental matters set 'up in the amended return to the writ that the petitioner has committed other offenses in the way of issuing checks upon banks where he had no funds or credit to protect the same, and had been given jail sentences and money fines for so doing. It may well be that the learned trial judge who refused to admit him to bail after conviction, upon the present charge of issuing a fictitious cheek had knowledge of, and took into account, the commission of these other offenses. He would have been warranted in so doing, for there is no legal impediment against a trial judge, when application is made by a defendant to be admitted to bail after his conviction for a felony, considering extrinsic matters which tend to show that the defendant has been a habitual offender, and if admitted to bail will continue in a criminal course of conduct, although such matters would not under the rules of evidence be admissible in a trial of his cause before a jury.
It is the duty of courts in the administration of criminal law to endeavor to . protect society against the habitual offender. While this must be done with due regard for the settled principles of the law, none of the fundamental rights of a person who has been convicted of a felony are violated by refusing him bail pending an appeal to this court, if his record is such that it may be reasonably anticipated that he will continue a career of crime until he is actually incarcerated in prison. With this class of offenders, their incarceration is for their benefit, as well as that of society. In considering the right of one to be admitted to bail after conviction on a felony charge, we think courts may consider the record of the offender in the commission of other offenses in determining whether or not he should be admitted to bail pending his appeal from such judgment of conviction.
The application should be denied and the prisoner remanded to the custody of the officer, and it is so ordered.