60 Barb. 480 | N.Y. Sup. Ct. | 1871
It is insisted on the part of the people, that the writ should be discharged for want of jurisdiction, inasmuch as it is not made to appear that there is no officer in the county of Albany, where the prisoner was detained, having authority to issue the writ. This objection is based on section 24 of the statute applicable to habeas corpus. (3 R. S. 884, § 38, [24] 5th ed.) This objection was considered by Justice Harris, in The People v. Hanna, (3 How. 39,) in an elaborate and well considered opinion, and was overruled. It is here unnecessary to do more than refer to that case, as the question is there fully discussed; and the decision has been universally recognized as sound, so far as I am aware.
It would doubtless have been very appropriate for me to have made the writ returnable before some officer in
The petition for the habeas corpus shows that the prisoner is, in fact, committed and detained by virtue of the final judgment of a competent court, having jurisdiction of the offense, and it is therefore insisted that the writ should be discharged.
This proceeding is not taken under the general act in relation to- writs of habeas corpus, with a view to the absolute discharge of the prisoner. But it is taken under a specific statute, (§ 19, above cited,) which authorizes the issuing of the writ, after judgment, with a view to let the party to bail, pending a writ of error. The proceeding is under a special provision of law, to which the general act has no application. It is true, in this case the petition states that the prisoner is not detained by virtue of the final judgment of any competent tribunal. But it also sets out the fact of the imprisonment, and the true cause, and shows all that is necessary to bring the cas.e within the purview of the special provision under which it is claimed the party may be let to bail. Such being the fact, and the return to the writ being made, showing the true condition of the case, it should now be considered with a view to the question in regard to the relief demanded, to wit, whether the party is entitled to be bailed, pursuant to section 19, above cited. In matters involving the personal freedom of a party, justice demands that the facts of the case should control, and that errors of statement, accidentally or ignorantly made, should be disregarded.
I think the case is before me in such form as to admit
The purpose of the several sections relating to this subject is, first, to give the convicted and sentenced party a
This purpose commends itself to one’s sense of right, and is both reasonable and humane. Bo person should suffer actual punishment until legally convicted; and the direction of a stay of judgment by a justice of the Supreme Court is,.and should be, sufficient evidence of illegality and error to warrant delay; and in offenses of minor importance, the party should in such cases be. allowed his freedom on good and sufficient security, to abide such judgment as should ultimately be pronounced. The right to let to bail after sentence, where a stay is ordered under section 19, is not disputed. Such right has been often asserted and exercised. (See note on Habeas Corpus, 3 Hill, 674, [47] ; The People v. Lohman, 2 Barb. 450; The People v. Rested, 3 How. 251; Yates v. The People, 6 John. 335, and on pages 280, 281, 282.)
But it is insisted that this right exists, under section 19, only in case the application be made before execution of the sentence has commenced. The section does not so declare. And the reasoning of the learned judge in The People v. Lohman, above cited, makes no such distinction. The syllabus of this case is to the effect that an application to let to bail under section 19, in all cases of a like character to this now under consideration, was appropriate, and the letting to bail became and was a matter of discretion, to be granted or denied, as the judge should deem proper.
•If it be true, as claimed, that there is no power to bail after execution of the sentence has commenced, the prisoner, however erroneous or illegal may be his conviction and sentence, is very much at the mercy of the district attorney. It must of necessity occupy some considerable
I do not think the provisions of the law which confers on a party the right of reviewing his trial and sentence, were intended as a sham and mockery; nor should those
It is said that the effect of this construction of the law is to confer on the justices of the Supreme Court the right to pardon, inasmuch as the time of imprisonment runs during the operation of the stay. But the law confers this power on those officers; and the delay, whatever may be its effect, is a legal delay, and the exercise of their power to direct a stay of thé execution of the judgment is confided to those officers. Undoubtedly it should be carefully and cautiously exercised. But the power exists by law, and this, too, as well in cases where the execution of judgment has commenced as in those where its execution has not commenced. And it is further said that if this construction be adopted, it is in the power of justices of the Supreme Court to open wide the prison doors to all convicted offenders against the laws. Undoubtedly it is within the power of those officers so to do, in many cases. This power is confided to the judgment and judicial discretion of those officers. And it is but right, and the commonest justice, that they should exercise this power, when it is made to appear on bill of exceptions that the conviction is illegal or erroneous. Even the admitted guilty must be legally tried and convicted according to the rules and forms of law, before they should be punished.
I have arrived at the conclusion that a party has' a right to be heard on an application to be let to bail, under sec
I think in this case, too, that the prisoner should be let to bail pending the decision of the court on the writ of error. I think I ought so to exercise my discretionary power. It must be assumed on this application that there is probable error in the conviction and sentence, inasmuch as the writ of error is granted with a stay of proceedings.
The granting of the stay may have been improvident, and a mistake of judgment on my part, but that point cannot be considered on this motion, as that question is not before me for review.
The prisoner must, therefore, be let to bail on complying with the provision of section 19, above cited. The order will determine the amount of bail and condition.
Affirmed at a General Term, for the Third Department, held at Schenectady, November 14, 1871. Miller, P. J., and Daniels and Parker, Justices,]