294 F. 996 | D.C. Cir. | 1924
Charles Williams was convicted of unlawful traffic in narcotics and sentenced to five years in the penitentiary by the‘Supreme Court of the District of Columbia. He perfected his appeal to this court, and then applied to the trial justice for enlargement on bail, but his application was denied. Thereupon he asked the Chief Justice of this court to release him on bail, and, in case of refusal by him (the Chief Justice) to do so, that She court mandamus (he trial justice to fix and accept bail.
Our rule 11, made under the authority o£ Congress, and having the effect of law, provides that, where an appeal is authorized hy law, and is in all respects duty perfected, the justice of the Supreme Court of the District before whom the trial was had, or any other justice of that court, may at any time during the pendency of the appeal allow and take bail of the appellant, and, if the transcript of the record of the appeal has been duty filed in this court after the appeal has been entered aud perfected, this court, or any justice thereof, may allow and take bail. Williams liad not filed the transcript of the record in this court at the time his application was made; therefore his application to be admitted to bail was refused. Is he entitled to a mandamus as prayed?
It is said that the word “may,” where is occurs in rule 11 should be construed as equivalent to “shall” or “must.” While it may be so construed under certain circumstances, it is unusual to do so. Williams v. The People, 24 N. Y. 405; Fowler v. Pirkins, 77 Ill. 271; Seiple v. Borough of Elizabeth, 27 N. J. Law, 407; Commonwealth v. Haynes, 107 Mass. 194, 196. Such construction is resorted to only where it is necessary to carry out the intention of the statute or rule. Minor v. Mechanics’ Bank, 1 Pet. 46, 7 L. Ed. 47; Supervisors v. United States, 4 Wall. 435, 18 L. Ed. 419; Kelly v. Morse, 3 Neb. 224. It is not necessary to resort to it on that ground in this case. Manifestly it is the intention of the rule to vest the enlargement of the defendant on bail in the sound discretion of the justices mentioned in the rule, and of this court. There may be instances in which no error is apparent on the face of the record, while in other cases error may be quite clear, or at least a very grave doubt exists with respect to it.
In the case of misdemeanors, much liberality should be shown in admitting to bail; but the rule should be otherwise where the*defendant has been found guilty of a felony. As to when a convicted person should be enlarged on bail is fully and very satisfactorily discussed in United States v. St. John, 254 Fed. 794, 166 C. C. A. 240. Consult, also, United States v. Gibson et al. (D. C.) 188 Fed. 396; Ex parte Harlan (C. C.) 180 Fed. 119; 6 C. J. 965, 966. It is urged that the St. John Case, ante, is not in point, because the defendant there did not have, as a matter of course, the right to have his case reviewed. But that does not distinguish the case. He had secured a writ of error before asking to have his bail fixed. The right, therefore, to have his case reviewed, was awarded to him before the question with respect to bail came up for consideration. Moreover, the right to bail in no way affects the right of a defendant to have his case considered in the appellate court. He may have an absolute right to the latter, without having any right to the former. They have no necessary relation to each other.
Where an application for bail is made to a justice of this court, or to the court itself, the applicant should point out in the record what he considers is a substantial error, and'notice of his application should
The application is denied, with costs.