In Re Aydelotte

CONREY, P. J.

On petition of Aydelotte the writ was issued. Return was made on behalf of the sheriff and a traverse was filed by the petitioner. On these papers, and some evidence produced at the hearing, the matter has been submitted.

By indictment duly found and presented in the superior court of Los Angeles County the petitioner stands accused-of the crime of grand theft. After indictment the defendant was admitted to bail in the sum of $2,500; he -gave bond in that amount and was released from custody. He entered a plea of not guilty and the case was placed on the calendar, to be tried on the seventeenth day of January, 1929, at 10 o’clock A. M. When the case was called for trial, the defendant not being present, his attorney represented to the court that the defendant was confined to his bed by a serious illness. The court continued the-case until 2 o’clock of that day. Thereupon a physician who had been in' attendance upon the defendant and who had examined defendant late the night before testified- that defendant’s condition was such that, according' to the physician’s belief, it would result in defendant’s death if defendant were brought into court. Thereupon the case was continued to January 18, 1929, at 10. o’clock A. M., and a bench warrant was issued for the arrest of the defendant. When the case was again called on January 18th it appeared that a .deputy sheriff, to whom the bench warrant had been delivered, had visited the defendant, but owing to defendant’s apparent illness, had not taken him into custody, and the deputy sheriff so reported to the court. The uncontradicted evidence before the court was as above stated. Thereupon' the court continued the case for trial to February 25, 1929, In connection therewith, however, and upon arrest of the defendant under the bench warrant, the court (without any request of defendant or his sureties) exonerated the sureties on the $2,500 undertaking of bail and ordered that defendant remain in custody and that he be released only upon exetiution of a new undertaking of bail in the sum of $10,000.

With the exception of certain capital cases, the defendant in a criminal action may be admitted to bail before conviction,

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as a matter of right. (Pen. Code, sec. 1271.) If he has been admitted to bail by a magistrate before indictment, the court to which the indictment is returned may enlarge the amount of bail. (Pen. Code, sec. 1273, subd. 3.) “When a defendant who has given bail appears for trial, the court may, in its discretion,. at any time after his appearance for trial, order him to be committed to the custody of the proper officer of the county, to abide the judgment or further order of the court, and he must be committed and held in custody accordingly.” (Pen. Code, sec. 1129.) Admission to bail after conviction in a felony case punishable by imprisonment is a matter of discretion with the court.