People v. Barton

WARD, J. Petitioner applies to this court for bail pending his appeal from a judgment of conviction of the crime of manslaughter. He asked for and was refused bail by the trial court. The present application is directed to the original jurisdiction of this court. (Pen. Code, §1291; rule 32(b), Rules on Appeal.) Counsel for petitioner and the district attorney stipulated that the evidence offered in the superior court might be examined by this court in lieu of affidavits of merit or other original evidence. This method of presenting the application is more in the nature of an appeal than an address to the original jurisdiction of the court.

Petitioner was charged with murder in the first degree and convicted of manslaughter. He was incarcerated on or about September 5, 1944. Judgment of conviction was rendered against him on or about February 2, 1945. On February 13, 1945, petitioner applied to the superior court for bail on appeal. The evidence upon which the superior court denied bail, and which is now before this court, consists of conflicting testimony and affidavits as to whether or not petitioner’s health would be endangered by immediate incarceration in the State Penitentiary at San Quentin. The testimony and affidavits of doctors presented by petitioner reveal that in their opinion he is suffering from anxiety neurosis, tremors, high blood pressure, and possibly ulcers. They believe that immediate [648]confinement in San Quentin would be hazardous to his health.

In opposition is the testimony of Dr. Harry W. Davis, who examined petitioner for the People. He found that except for tremors petitioner’s physical condition was normal, and that.nothing in petitioner’s mental condition would lead him to conclude that he was suffering from an anxiety neurosis. In his opinion imprisonment was not immediately dangerous to petitioner’s health. Dr. Mervyn Hirschfeld, who also examined petitioner for the People, stated in an affidavit that while petitioner was an emotionally unstable individual, he had shown no difficulty in adjusting himself to the routine of the county jail and that he would anticipate no serious consequences from his transfer from one penal institution to another. The record shows that during the entire time petitioner has been confined in the county jail his name has not appeared on the sick list, nor has he or anyone on his behalf called his alleged illness to the attention of the jail physician. The People also introduced an affidavit from the psychiatrist at San Quentin stating that the prison was equipped with the personnel and physical facilities to handle eases of anxiety neurosis.