38 Neb. 502 | Neb. | 1893
This was an application by Barrett Scott for a writ of habeas corpus to procure a reduction of the amount of his bail bond, alleging his inability to give a bond in the sum of $70,000, the amount fixed by the district court of Holt county, and that said sum is excessive. At the September, 1893, term of the district court of the county of Holt the grand jury returned an indictment charging the petitioner on the 4th day of August, 1893, as county treasurer of said county, with embezzling the sum of $70,000 of the pyblic moneys belonging to said county. On the 7th day of October, 1893, on application of the prisoner to be admitted to bail, the district court fixed the amount of his recognizance at $24,000. Subsequently, on the 16th day of the same month, on motion of the county attorney, the district court, Judge Kinkaid presiding, increased the amount of recognizance to the sum of $70,000; and Scott refusing to give a bond in such sum, it was ordered by the court that he be remanded to the county jail until such recognizance be given.
There, is uo room for doubt that the district court has the power to increase or diminish the amount of bond a prisoner shall give for his appearance before said court and to answer to a criminal charge preferred
It is insisted by counsel for the petitioner that the amount at which his bail was finally fixed is unreasonable and excessive, and a violation of the constitutional guaranty which declares that “all persons shall be bailable by sufficient sureties, except for treason and murder, where the proof is evident or the presumption is great. Excessive bail shall- not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Constitution, art. 1, sec. 9.)
Before entering upon a discussion of the question whether excessiye bail has been required in this case, there are two other questions-which we will first briefly consider, namely; Is the order of the district court fixing the amount of the recognizance final and conclusive? On an application to bail, after indictment, what presumption, if any, does the law raise as to the guilt or innocence of the accused ?
Section 358 of chapter 34 of the Criminal Code, entitled “Habeas Corpus,” declares that “when the said judge shall have examined into the cause of the caption and detention of the person so brought before him, and shall be satisfied that the person is unlawfully imprisoned or detained, he shall forthwith discharge such prisoner from said confinement; and in case the persón or persons applying for such writ shall be confined or detained in a legal nianner, on a charge of having committed any crime or offense, the said judge shall, at his discretion, commit, discharge, or let to bail such person or persons; and if the said judge shall deem the offense bailable on the principles of law, he shall cause the person charged as aforesaid to enter into recognizance with one or more sufficient securities, in such sum as the judge shall think reasonable, the circumstances of the prisoner and the nature of the offense charged considered, conditioned for his appearance at the next court where the offense is cognizable,” etc.
The section first above quoted confers authority upon a judge of the district court to let a prisoner to bail, when the offense charged is a bailable one, and to determine in what sum the bond shall be given. Of course, a discretion rests with the judge in fixing the amount of the recognizance; but this discretion is a judicial one. The decision
Counsel for the respondent insist that, on the determination of an application to admit to bail after indictment, the presumption of innocence does not obtain, but that the accused is-presumed to be guilty of the offense laid in the indictment. The authorities upon the subject are conflicting. The following sustain the contention of counsel: People v. Dixon, 4 Park. Crim. Rep. [N. Y.], 651; Ex parte Ryan, 44 Cal., 555; Ex parte Duncan, 53 Cal., 410, 54 Cal., 75. Other cases uphold the doctrine that even after indictment found, in an application for reduction of bail, the court or judge will receive evidence as to the probable guilt of the prisoner. (Yarbrough v. State, 2 Tex., 519; Drury v. State, 25 Tex., 45; Ex parte Bryant, 34 Ala., 270; Ex parte Hammock, 78 Ala., 414; Ex parte Vaughn, 44 Ala., 417; Commonwealth v. Rutherford, 5 Randolph [Va.], 646 ; Lynch v. People, 38 Ill., 494; Lumm v. State, 3 Ind., 293; Ex parte Kramer, 19 Tex. App., 123; Wray’s Case, 30 Miss., 681; Street v. State, 43 Miss., 1; State v. Summons, 19 O., 141; Ex parte Kittrel, 20 Ark., 499; Church, Habeas Corpus, sec. 403a.) The rule which occurs to us as being the most reasonable and most likely to aid in the administration of justice is this: That on application for bail by a person held in custody under an indictment found by a grand jury, the presentment of an indictment makes out
We will next consider whether excessive bail was required of the petitioner by the district court within the meaning of that term as used in our bill of rights. The question is not whether the amount of bail required is high, or whether we would have fixed so large a sum had the application been made to us in the first instance, but rather, was the bail demanded, per se, unreasonable, and disproportionate to the crime charged in the indictment. This, in substance, is the rule governing applications like the one before us as laid down in the decisions already cited.
From the evidence in the record it is not improbable that the petitioner will be unable to procure bail in the sum of $70,000; but that alone is not sufficient to establish that the amount is excessive or should be reduced. We do not question that the pecuniary circumstances of a prisoner should be considered in determining the amount of bail, yet that should not in itself control. If it did, a prisoner who is without means or friends would be entitled to be discharged on his own recognizance. (People v. Town, 3 Scam. [Ill.], 19; Ex parte Duncan, supra.) The object of requiring bail is to secure, the attendance of the prisoner to answer to the offense charged, and abide the judgment and sentence of the-court, should he be found guilty. Many things should be . taken into consideration in fixing the amount of bail, such as the atrocity of the offense; the penalty which the law authorizes to be inflicted in case of a conviction; the probability of the accused appearing to answer the charge against him, if released on bail; his pe
Something was said on the argument of the case under consideration about the petitioner having once forfeited his recognizance. If this were true, that would be a proper matter for consideration in fixing the amount of his bond. The evidence shows a complaint was filed by one "W. F. Hays before the county court of Holt county, charging Scott with embezzling county funds. The accused waived a preliminary examination and gave a bond in the sum of $15,000 for his appearance at the March, 1893, term of the district court of the county. At said term the county attorney filed an information charging Scott with the crime of embezzlement. The accused attended the March term of the district court and demanded trial, but the case was not reached. At.the following term of said court, Scott having failed to appear, his bail was declared forfeited. It is probable, and for the purpose of this case we shall assume, without deciding the quéstion, that, under the recognizance, the petitioner was only legally bound to personally
Writ denied.