Ex parte Hoge

By Wallace, J.: The petitioner, lately under indictment for an assault with a deadly weapon, alleged to have been made upon one Dwyer, with intent to murder him, was, upon trial in the Municipal Criminal Court, found guilty of an assault made with a deadly weapon, with intent to do a bodily injury. The punishment provided by statute for this last offense is a [4]fine or imprisonment, or both; Upon this conviction the Municipal Court adjudged him to suffer imprisonment in the State Prison for the term of eighteen months, and from this judgment he has appealed to the Supreme Court. Upon taking his appeal, he- applied to the Judge of the Municipal Court to be admitted to bail pending the appeal, and his application was refused. It is understood that the learned Judge, in thus refusing the application, did not maintain that the prisoner might not lawfully be admitted to bail pending the appeal, but, holding that the prisoner had no absolute right to go at large upon bail after conviction, the Judge was further of opinion that it would be more appropriate that the mere discretion to admit him to bail, under the circumstances, should be exercised by the Supreme Court, to which the appeal-had been taken, or by some one of its Justices. The counsel for the petitioner, in the argument upon the hearing before me, insisted that as the prisoner is not charged with a capital offense, he has an absolute constitutional right to be at large upon bail pending the appeal; and that upon the fact of his conviction for this offense, minor in its character, and upon the further fact of an apjrnal having been taken from the judgment, it is my bounden duty to admit him to bail, and that I have under these circumstances no discretion to refuse the application. In support of this proposition the counsel cited section seven, Article I, of the Constitution of this State, and which is in the following words: “All persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident or the presumption great.”

The argument is, that it was the evident purpose of the framers of the Constitution to abrogate that somewhat unbounded discretion which the Judges are known to have exercised at common law in allowing or refusing bail, and which is said to have “ ever been regarded with jealousy by a people tenacious of liberty.” It is said that the liberty of the citizen was not intended to be left with no more reliable safeguard against ■ its violation than the mere discretion of a Judge. That if the offense charged be capital in degree, then an inquiry must be directed to ascertain if the