*1 MATHEWS, Before HEALY Judges. Judge. MATHEWS, Appellants1 violating were indicted for § Act,2 3 of the Smith were allowed bail $50,000 District Mathes the sum and, each appel were detained in lee, Boyle. United States Marshal J. James Alleging that the bail of them was excessive, appellants petitioned the District corpus. writs of habeas Orders to show cause issued, were returns were J., Healy, dissented. filed, a hearing had before District
Judge Harrison, an order was entered de
nying
petitions,
appellants
ap
have
pealed from the order. We affirm the or
reasons;
following
der for the
First.
prop
is not a
appellants
as
detained,
appellants
Appellants
Stack,
Loretta
are
Starvus
Cir.,
reversed in 320 U.S.
Philip
Richmond,
Connelly,
Marshall
A1
87 L.Ed.
Al
Healey,
Dorothy Rosenblum
Ernest Otto
States, Cir.,
exander v. United
173 F.
Schneiderman,
Eox,
Rude
Carl
William
Id.,
2d
Doran v. United
F.2d
Steinberg;
Lambert, Henry
Oleta O’Con-
States, Cir.,
Kusnitz, Mary
Yates,
Chernin
Rose
nor
Bernadette
489; Connelly v. United States District
Doyle and Albert
Jason
Court,
F.2d 692.
Healey,
Connelly,
Schneiderman
Lima.
and
Steinberg
Edition,
2. 18
have been here before.
U.S.C.1946
11§
[1948
Re
States,
Code,
v. United
vised Criminal
2385].
U.S.C.A. §
Schneiderman
*2
57
(dissenting).
HEALY,
Judge
a United
custody of
were and
in the
furnishing hail
default of
marshal in
States
to one
corpus is available
I
habeas
think
rem
proper
alleged
be excessive.3
to
The
to
custody
claimed
bail
in
under
detained
edy
reduc
in
a
is a motion for
2241(c) (1)
case
28
be excessive. See U.S.C.A. §
of
Therefore,
regardless
tion of bail.4
that it
concedes
government
(3).
The
appellants was
required of
subject
bail
the
only
bearing on the
is,
cases
and the
habeas
petitions
of
excessive,
for writs
their
Unit-
particularly,
support that
See
view.1
corpus
properly
Mulcahy,
denied.
ex rel. Rubinstein v.
ed States
otherwise,
it were
1002. If
did not
Judge
Second.
Harrison
imposition of
adequate remedy for the
no
required
appellants was
find that
bail
of
the
right
the
Yet
bail would exist.
excessive
Instead, he
the bail
found
that
by the Constitu-
guaranteed
pres
involved is one
required
“necessary
assure the
was
to
pro-
Eighth
of which
tion,
Amendment
the
proceed
of [appellants]
ence
in the further
be re-
shall
“Excessive bail
not
vides that
cannot
ings
the criminal case.”5 We
in
reduction
quired.”
a
course motion for
Of
say
clearly erroneous.
finding
the
was
that
fixed the
the
which
order,
addressed to
court
Therefore
should affirm the
even
we
course,
in
proper
a
but
would be
proper amount
we
habeas
a
if
obviously be futile.
remedy
it would
charged
this instance
Mathes,
charge
the
is in
of
cases
against
Judge
who
United
in
the
States and detained
so after
and who fixed
did
the
of a
marshal in below
the
custody
urged in
a
since
alleged
hearing
ex
of matters
furnishing
default of
to be
full
all
corpus proceedings now before
cessive,
not.
the
which we do
habeas
change
hardly expect him to
can
us. One
Order affirmed.
hearing of the same
on a second
his views
facts.
Judge (concurring).
agreement
I am in
ex-
with
views
only,
the
persons,
petitioners are accused
The
pressed
by
Despite
Mathews.
yet
charge
on
have not
been tried
who
place
and historic
traditional
in our Federal
them,
to
are entitled
against
they
system law which the
of
Writ occu-
Great
appertain-
presumption of innocence
usual
pies,
strange
it more than
that one hun-
Measured
those of that status.
at
ing to
fifty-seven years elapsed (1789-
dred and
the fed-
least
the standards followed
1946)
appellate
before
elsewhere,
claim that the
eral courts
their
(and squarely
conclusion
held)
reached the
is excessive is wor-
bail fixed in their cases
that a person under indictment could resort
thy
attention.
It is notable that
of serious
Corpus
to
proceedings
secure re-
to
respect
groups
in
communist
rounded
duction
fixed by
of bail
a district court.
Act in oth-
up
indicted under the
Smith
regard
erroneous,
3. We
to
leged
decline
in
to
excessive—was
John
be
raised
follow,
Hoy,
Supreme
United States ex rel. Rubinstein
found
but the
v.
son
it
Mulcahy, Cir.,
1002,
v.
unnecessary
question
cited
to decide the
by appellants.
holding
question
The
in the Rubin
was not
it. The
not decide
did
supported by
Skeffington
stein case
not
or decided
involved
case,
(Johnson Hoy,
the cases cited therein
227
Colyer
v.
the Deliz
Sammons case or
L.Ed.
U.S.
case.
Skeffington, D.C.Mass.,
v.
265 F.
example,
See,
States v. Av
4.
Skeffington
Katzeff,
reversed in
v.
D.C.W.D.Va.,
See,
erett,
also,
here It is wheth
er the factors be considered *3 bail, pre
determining the amount of
scribed in 46(c) Rule of the Crim Rules,
inal were observed U.S.C.A.,
these cases.2 petitioners
The claim of the should be this court unfettered
holding of the that no court other
than one which au- fixed
thority consider amount CITY NAT. BANK OF
BUFFUM CHASE YORK. OF NEW Court of Seventh Circuit. * * * gard 46(c) (c) to the nature and reads: “Bail 2. Rule circumstances of weight the offense If the defendant is admitted Amount. against him, evidence ity amount thereof shall financial be such abil to as give judgment defendant to of the of the commissioner justice judge of the defendant.” or or will character insure or defendant, having presence of the re