126 Ga. 67 | Ga. | 1906
(After stating the facts.) 1. This court has no-original jurisdiction, hut is a court alone for the trial and correction of errors. Constitution, article 6, section 2, paragraph 5, Civil Code, § 5836. So. far as material to the present case, the Supreme Court is declared to have authority, “To exercise appellate jurisdiction, and that only, and in no case to hear facts or examine witnesses. . . To' grant any writ necessary to carry out any purpose of its organization, or to compel any inferior tribunal or officers thereof to obey its order. . . To punish for contempt . . .” Civil Code, § 5498. It is in no respect a court of first instance. It may issue writs necessary to carry out the purposes-of its organization, and compel obedience to its orders by inferior tribunals or officers, such as mandamus to compel the clerk of the trial court to complete or send up a transcript of the record (Civil Code, § 5538); or to compel a judge to sign a bill of exceptions, if he unlawfully refuses to do so (Taylor v. Reese, 108 Ga. 379); or to compel the granting of a supersedeas to stay the execution of a. judgment in a criminal case while it is pending on bill of exceptions to this court (Spann v. Clark, 47 Ga. 369). This is not an exhaustive statement, but is illustrative of the fact that writs of this character are issued as ancillary to the jurisdiction of this. court, and not as original proceedings. In this case, upon the filing of the bill of exceptions, the presiding judge granted a supersedeas. It does not appear how the question of granting or refusing bail is ■ necessarily involved in the consideration and determination of the’questions raised by the bill of exceptions, nor why the case can not be as well heard and determined here whether the defendant is in jail or has given bond. It may well be doubted whether this court has any jurisdiction to grant the relief prayed, or whether the defendant has pursued the proper remedy by applying for a mandamus, even if his application for bail had been erroneously refused. The decision in Hudson v. Parker, 156 U. S. 277, is relied on by counsel for the applicant; but the ruling-there made was, that, under the acts of Congress conferring certain, powers upon the Supreme Court of the United States, and under a rule which had.been adopted by that court, one of its Justices had authority ■•to allow a writ of error to a circuit or district court
2. But as the applicant has brought the case before us both by this application for mandamus, and also by bill of exceptions, we .are not inclined to rest our decision merely on the question above referred to.
At common law the granting or refusing of bail was in all eases .a matter which was held to rest in the sound discretion of the •court. 2 Hale’s Pl. Cr. 129; King v. Portier, 13 Que. K. B. 251, 1 Am. & Eng. Ann. Cases, 10, 12, and note; 3 Enc. Pl. & Pr. 200. And this rule has been generally adopted in those States where the matter has not been made the subject of constitutional or statutory provisions. 3 Am. & Enc. L. (2d ed.) 664. This does not refer to committing magistrates. The exercise of this discretion .at common law depended to some extent upon the gravity of the ■offense, bail being more readily granted in cases involving misdemeanors than in those involving felonies. Prior to the organization of the Supreme Court, it was held by the superior-court judges that they had “a discretionary power (governed by the circum.stanees of the case) to bail in all eases whatsoever.” See State v. Abbott, R. M. Charlton, 244, (where the matter is elaborately discussed); State v. Wicks, R. M. Charlton, 139; State v. Howell, R. M. Charlton, 120. In most of the United States the question ■of the right to bail has been made the subject of constitutional provisions, and the right in such States is controlled by them. 3 Am. & Eng. Enc. L. (2d ed.) 665; 5 Cyc. 68. In this State the only •constitutional declaration on the subject is that “Excessive bail .shall not be required.” Civil Code, §5706. This does not determine any right to bail, or in what cases it exists, but only prohibits •exeessiveness in amotint, where bail is allowed. Turning to the .statutes of the State on the subject, we find the following see-.tions bearing upon the point now being considered: Penal Code,
In Corbett v. State, 24 Ga. 391, the accused was found guilty of forgery. Pending a motion in arrest of judgment he moved the court to be admitted to bail. This was refused by the presiding judge, who held that after conviction the case was not bailable. The Supreme Court held that “The superior courts in this State have the same power, in relation to bail in criminal cases, as the court of King’s Bench in England.” In the opinion it was said: “In short, the law is this: The court has the power to grant bail in all bailable cases, until the accused is in execution. But this discretion must be exercised ox refused in each particular case, according to the facts which attend it. The whole subject is under the control of the court.” This was. a distinct ruling that after conviction of a felony, though not capital in its character, the
It is contended that section 1077 of the Penal Code is controlling. It reads as follows: “The bill of exceptions thus filed shall operate as a supersedeas, upon the plaintiff in error complying with the following terms: Where the offense is bailable, the defendant shall enter into a recognizance before the clerk, with security to be approved by him, in a sum to be fixed by the presiding judge, conditioned for the personal appearance of such defendant, to abide the final order, judgment, or sentence of said court. If the offense is not bailable, the judge shall order a supersedeas at the time of filing the bill of exceptions. If the party is unable from his
Thus the question of admitting the defendant to bail after his conviction rested in the sound discretion of the presiding judge. His discretion was not abused, and will not be reversed. The petition praying for the writ of habeas corpus, and that the accused be allowed to give bail, alleges that his detention is contrary to the constitution of jhe State of Georgia, and that of the United States. It does not point out what particular provisions of those instruments are violated.
Application for mandamus dismissed. In the second case the judgment is affirmed.