Ex Parte Marks

By Wallace, C. J.: The petition in this case sets forth that the prisoner, in the Municipal Criminal Court, has been adjudged to suffer imprisonment in the State Prison for the crime of embezzlement, of which crime he was convicted upon trial had in that Court; that he has in good faith taken an appeal from the judgment; and that by reason of errors committed, by which his substantial rights were injuriously affected at the trial, he is advised by his counsel and verily believes that the judgment against him will be reversed by the Supreme Court. He alleges that he is pecuniarily able, and is willing to furnish bail, pending the appeal.

It appears by the return to the writ that the prisoner has been adjudged by the Municipal Criminal Court to suffer imprisonment in the State Prison for the term of seven years.

The statute (Penal Code, Sec. 1,272), provides, as was formerly provided, that in such a case as this, the prisoner may be admitted to bail, not as a matter of right, but only as a matter of discretion. Its language is as follows:

“ Section 1,272.—After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail, 1st, as a matter of right, where the appeal is from a judgment imposing a fine only; 2nd, as a matter of discretion in all other cases.”

In Hoge’s case, (48 Cal. B. 5,) in which it appeared that he had been convicted of the crime of assault with a deadly weapon, made upon one Dwyer, I had occasion to observe that the “ discretion,” in the exercise of which bail was to be allowed or refused, after conviction, was not arbitrary in its character, but should be measured by legal rules, and by reference to the analogies of the law, and to promote substantial justice in the case. In that case, I said that if such a result could be averted by legal means, it was certainly not consonant to the dictates of common humanity, or to received ideas of justice, that the prisoner should be actually undergoing punishment as a criminal, even while the ultimate question of his guilt was yet being [682]tried through the instrumentality of an appeal afforded by law for that purpose.

It is not to be denied, that in practice, the discretion to admit a prisoner to bail, pending an appeal, has heretofore been habitually exercised, with great liberality. Under the statutes in force previous to the Penal Code, the Courts had no authority to directly stay the proceedings upon appeal taken from judgments in felonies less than capital in degree. The only method by which such a stay could be effected, was by admitting the prisoner to bail, and as cases not infrequently arose in which it could be seen upon inspection of the record, that substantial justice required that the proceedings should be stayed, pending the appeal, admission to bail followed almost as of course, when the prisoner was pecuniarily able to furnish bail.