People v. Davis

PETERS, P. J.

Petitioner, George W. Davis, has been convicted of grand theft. His appeal is now pending. By this application he seeks from this court an order admitting him to bail pending the appeal. Such an application was first made to the trial court, and was there denied.' That court also denied his petition for probation. The application recites the conviction and the taking of the appeal,' and- then alleges that the denial of bail by the trial court was unjustified and an abuse of discretion. In this connection it is averred that petitioner has been a resident of San Francisco all his life; that prior to his present difficulties he was a man of good repute; that he is married and his family and other relatives live in San Francisco; that all of them are persons of good reputations; that the criminal charge of which petitioner stands convicted was his first offense; that from the time of his arrest to the date of his conviction he was admitted to bail and during such period did not violate the conditions of his bail; that petitioner has been found guilty of stealing from his employer $9,399.65. In connection with the present application there also has been filed an affidavit of merits which, it may be conceded, demonstrates that the appeal is not frivolous. The district attorney opposes the application, urging that , the trial court acted well within its discretion in refusing bail. The report of the probation officer which was before the trial court, and upon which the district attorney relies, recites that petitioner had been employed by a dry goods company as a salesman from 1933 to 1944; that almost from the start of his employment he had systematically stolen goods and merchandise from his employer and resold them to retail merchants who were customers of his employer; that his thefts totaled over $40,000. It also appears that after his conviction petitioner restored $4,128.14 to his employer by way of restitution.

The showing thus made falls far short of that required. Section 1272 of the Penal Code provides 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.

[839]

“2.

As a matter of right, when the appeal is from a judgment imposing imprisonment in cases of misdemeanor.