A territorial statute which authorizes an appeal by a defendant
in a criminal action from a final judgment of conviction, which
provides that an appeal shall stay execution upon filing with the
clerk a certificate of a judge that in his opinion there is
probable cause for the appeal, and further provides that after
conviction, a defendant who has appealed may be admitted to bail as
of right when the judgment is for the payment of a fine only, and
as matter of discretion in other cases, does not confer upon a
defendant convicted and sentenced to pay a fine and be imprisoned
the right, after appeal and filing of certificate of probable
cause, to be admitted to bail except within the discretion of the
court.
The appellant, having been found guilty by a jury in the
District Court for the Third Judicial District of Utah, of the
crimes of polygamy and unlawful cohabitation, charged in separate
counts of the same indictment, was sentenced, on the conviction fox
polygamy, to pay a fine of $500 and to be imprisoned for the term
of three years and six months, and, on the conviction for unlawful
cohabitation, to pay a fine of $300 and be imprisoned six months.
From the whole of the judgment an appeal was taken to the supreme
court of the territory, and the judge before whom the trial was had
gave a certificate that in his opinion there was probable cause
thereof. The appeal was perfected and the certificate was filed in
the proper office.
The defendant thereupon applied to the court in which he was
sentenced to be let to bail pending his appeal. The application was
denied, the order reciting that
"The court being of the opinion that the defendant ought not to
be admitted to bail after conviction and sentence unless some
extraordinary reason therefor is shown, and there being no
sufficient reason shown in this case, it is ordered that the motion
and application for bail be and the same is hereby denied, and the
defendant be remanded to the custody of the United States
marshal."
The accused then sued out an original writ of habeas corpus
from
Page 113 U. S. 144
the supreme court of the territory. In his petition therefor, he
stated that he was then imprisoned and in the actual custody of the
United States marshal for the territory at the penitentiary in the
County of Salt Lake. He also averred that upon the denial of bail
by the court in which he was tried, "he was remanded to the custody
of said United States marshal, who from thenceforth has imprisoned
and still imprisons him" under said order of commitment, which "is
the sole and only cause and authority" for his "detention and
imprisonment," that "his said imprisonment is illegal" in that "he
has been and is able and now offers to give bail pending his appeal
in such sum as the court may reasonably determine," and that
"as a matter of right and in the sound exercise of a legal
discretion, the petitioner is entitled to bail pending the hearing
and determination of said appeal."
The supreme court of the territory overruled the application for
bail, and remanded the petitioner to the custody of the marshal.
From that order the present appeal was prosecuted.
The statutes of Utah regulating bail are printed in the margin.
*
Page 113 U. S. 146
MR. JUSTICE HARLAN delivered the opinion of the Court. He
recited the facts as above stated and continued:
By the laws of Utah regulating the mode of procedure in criminal
cases, it is provided, among other things, that the defendant
Page 113 U. S. 147
in a criminal action may appeal to the supreme court of the
territory from any order, made after judgment, affecting his
substantial rights. Laws of Utah, 1878, Tit. VIII, c. 1, ยง 360. To
that class belonged the order made by the court of original
jurisdiction refusing bail and remanding the accused to the custody
of the marshal. But no appeal was taken from that order. And as the
accused sued out an original writ of habeas corpus from the supreme
court of the territory, we cannot, upon the present appeal,
consider whether the court of original jurisdiction properly
interpreted the local statutes in holding that the accused "ought
not to be admitted to bail, after conviction and sentence, unless
some extraordinary reason therefor is shown." There is nothing
before us for review except the order of the supreme court of the
territory, which discloses nothing more than the denial of the
application to it for bail and the remanding of the prisoner to the
custody of the marshal. That order, in connection with the petition
for habeas corpus, assuming all of the allegations of fact
contained in it to be true, only raises the question whether, under
the laws of the territory, the accused, upon perfecting his appeal
and filing the required certificate of probable cause, was
entitled, as matter of right and without further showing, to be let
to bail pending his appeal from the judgment of conviction. Upon
the part of the government, it is insisted that the court below had
by the statute a discretion in the premises which, upon appeal,
will not be reviewed.
By the laws of the territory, it is provided that
"An appeal to the supreme court from a judgment of conviction
stays the execution of the judgment, upon filing with the clerk of
the court in which the conviction was had a certificate of the
judge of such court, or of a justice of the supreme court, that in
his opinion there is probably cause for appeal, but not
otherwise;"
also that if this certificate is filed,
"the sheriff must, if the defendant is in his custody, upon
being served with a copy thereof, keep the defendant in his custody
without executing the judgment, and detain him to abide the
judgment on appeal."
Laws of Utah 1878, p. 138. Upon the subject of bail, the same
laws provide that
"A defendant charged with an offense
Page 113 U. S. 148
punishable with death cannot be admitted to bail when the proof
of his guilt is evident or the presumption thereof great;"
also that "if the charge is for any other offense, he may be
admitted to bail before conviction as a matter of right;" further,
that
"After conviction of an offense not punishable with death, a
defendant who has appealed may be admitted to bail: 1, as a matter
of right when the appeal is from a judgment imposing a fine only;
2, as a matter of discretion in all other cases;"
still further, that
"In the cases on which the defendant may be admitted to bail
upon an appeal, the order admitting him to bail may be made by any
magistrate having the power to issue a writ of habeas corpus."
Ib., pp. 142, 146.
These statutory provisions so clearly indicate the legislative
intent that no room is left for interpretation. As the judgment did
not impose upon the appellant a fine only, his admission to bail
pending the appeal from that judgment was not a matter of right,
but was distinctly committed by the statute to the discretion of
the court of judge to whom the application for bail may be made.
The exercise of that discretion is not expressly nor by necessary
implication forbidden in cases in which the certificate of probable
cause is granted, for, by the statute, that certificate only
operated to suspend the execution of the judgment of conviction
requiring the officer having the accused in charge to retain him in
his own custody to abide the judgment on appeal. We do not mean to
say that the granting of such a certificate is not a fact entitled
to weight in the determination of an application for bail, but only
that the statute does not make it so far conclusive of the question
of bail as to prevent the court from considering every circumstance
which should fairly and reasonable control or affect its
discretion. Whether the supreme court of the territory abused its
discretion in the present case is a question not presented by the
record before us, for it does not contain any finding of facts, nor
the evidence (if there was any apart from the record of the trial
and of the proceedings upon the first application for bail) upon
which the court below acted. Its judgment denying bail cannot,
therefore, be reversed unless, as contended by appellant, the
certificate of probable cause
Page 113 U. S. 149
necessarily carried with it the right to bail and deprived the
court of all discretion in the premises. But that construction of
the statute is not, we think, admissible.
At the argument, counsel for appellant laid stress upon the
fact, averred in the last petition for habeas corpus, that the
order committing him to the custody of the marshal had been
executed by confining him at the penitentiary. The return of the
officer is that the accused is in his custody under and by virtue
of the order of commitment. It is not claimed that he is treated as
a convict in the penitentiary, undergoing the sentence pronounced
in pursuance of the judgment appealed from, but only that the
officer uses that institution as a place for the confinement of the
accused while the latter is in his custody. Whether that action of
the officer be legal is a question that does not now arise, for the
application to the supreme court of the territory for habeas corpus
only raised the question of the right of the accused to be
discharged on bail from all custody whatever, and the present
appeal is from the order in that court refusing such discharge and
remanding him to the custody of the marshal.
There is no error in the record, and the judgment is
Affirmed.
*
"
Laws of Utah, 1878, Title VIII"
"SEC. 353. Either party in a criminal action may appeal to the
Supreme Court on questions of law alone, as prescribed in this
chapter."
"SEC. 360. An appeal may be taken by the defendant"
"1. From a final judgment of conviction;"
"2. From an order denying a motion for a new trial;"
"3. From an order made after judgment, affecting the substantial
rights of the party."
"SEC. 362. An appeal from a judgment must be taken within one
year after its rendition, and from an order within sixty days after
it is made."
"SEC. 363. An appeal is taken by filing with the clerk of the
court in which the judgment or order appealed from is entered or
filed, a notice stating the appeal from the same, and serving a
copy thereof upon the attorney of the adverse party."
"SEC. 366. An appeal to the Supreme Court from a judgment of
conviction stays the execution of the judgment, upon filing with
the clerk of the court in which the conviction was had, a
certificate of the judge of such court, or of a justice of the
Supreme Court, that in his opinion there is probably cause for the
appeal, but not otherwise."
"SEC. 388. After conviction of an offense not punishable with
death, a defendant who has appealed may be admitted to bail: 1, as
a matter of right when the appeal is from a judgment imposing a
fine only; 2, as a matter of discretion in all other cases."
