Opinion
13753.
MAY 16, 1941.
Petition for habeas corpus. Before Judge Hendrix. Fulton superior court. March 17, 1941.
C. G. Battle, for plaintiff. John A. Boykin, solicitor-general, Bond Almand, solicitor, and Durwood T. Pye, for defendant.
The filing of a bill of exceptions to the decision of the judge on the hearing of a habeas-corpus case, where the petitioner is being held under a sentence imposed upon her after a verdict of guilty in a misdemeanor case, does not entitle her to a supersedeas and bail, pending the decision on writ of error; and was not erroneous for the judge to deny her bail.
No. 13753. MAY 16, 1941.
It is recited in the bill of exceptions, that there came on to be heard before one of the judges of Fulton superior court a petition for the writ of habeas corpus, filed by plaintiff in error against the sheriff, which was denied; that a bill of exceptions was filed, alleging error in the denial of the writ; that, simultaneously with the signing of the bill of exceptions, she presented to the same judge a petition for supersedeas and bond, for her release from custody pending the determination of her case in this court; and that upon considering the same the judge granted a supersedeas, but denied her application for bond. The order denying bail is as follows: "After hearing the within and foregoing application for supersedeas and bond for the release from custody of the said Mary Johnson, as prayed, it is hereby ordered:
"To the Clerk of the Superior and Criminal Court of Fulton County, and to the Sheriff of Fulton County: The plaintiff in the above-stated case having tendered a bill of exceptions in the above-stated case, which has been allowed and signed: therefore we command you and each of you that you wholly cease from any further proceedings whatsoever in relation to said case, until the further order of this court. The effect of the above order is to grant supersedeas, but no bail until further order. Given under my hand and official signature, this the 17th day of March, 1941." Signed by the judge.
The present bill of exceptions assigns error on the refusal to grant bail, in the following language: "That the court erred in holding, in effect, that the court was without discretion or authority to grant bond in a habeas-corpus case, even upon the allowing, certifying, and filing of the bill of exceptions in such case." The transcript of the record consists only of the petition last referred to and the order thereon. Since the certificate recites that the bill of exceptions specifies all of the record and all of the evidence material to a clear understanding of the errors complained of, and since no evidence is set forth or referred to therein, it is to be inferred that no evidence was before the judge when he denied bail.
It is in effect stated in the brief of counsel for the plaintiff that his client has been convicted of a misdemeanor and sentenced therefore, and that the object of the application for habeas corpus was to secure her release, her insistence being that she held a pardon from the Governor. In the brief by the defendant in error there is nothing to negative that statement. Under rule 15 of this court we are authorized to take as true the statement above referred to. There are numerous provisions of our law in regard to bail, such as giving bail in a court of inquiry (Code, § 27-418); for the giving of bail before a judge of the superior court (§ 27-901); requiring acceptance of a reasonable amount of bail in misdemeanor cases (§ 27-902); that the rule nisi shall operate as a supersedeas on motion for new trial in criminal cases (§ 70-308): and on the filing of a bill of exceptions, where the offense is bailable, the allowance of a supersedeas bond in criminal cases (§ 6-1005). There is no express provision, however, for the allowance of bail to one who has unsuccessfully sought release from custody in a habeas-corpus case. It has been held that the grant or refusal of bail to the accused after conviction and after the filing of a motion for a new trial, which was pending, was a matter within the discretion of the judge of the trial court. Jernagin v. State, 118 Ga. 307 ( 45 S.E. 411); Vanderford v. Brand, 126 Ga. 67 ( 54 S.E. 822, 9 Ann. Cas. 617); Maddox v. State, 18 Ga. App. 712 ( 90 S.E. 377). The case last cited involved a misdemeanor, but was decided before the act of August 21, 1922, hereinafter referred to. These were criminal cases where the accused were seeking to have the correctness of their convictions reviewed. Such is not the case before us.
In Corbett v. State, 24 Ga. 391, the accused was found guilty of forgery. Pending a motion in arrest of judgment, he moved that the court admit him to bail. This was refused by the judge, on the ground that the case was not bailable after a verdict of guilty had been rendered. A reversal was had on the ground that the trial court based its decision on the want of power in the court to admit to bail in an infamous crime, the Supreme Court holding that in such a situation the whole subject is under the control of the court "until the accused is in execution." In Irwin v. Jackson, 34 Ga. 101, a habeas-corpus case, it was ruled that the filing of a bill of exceptions to the decision of the judge does not operate as a supersedeas. "But the applicant must remain in the condition in which he is placed by the judgment, whether exception be taken or not." In Hames v. Sturdivant, 181 Ga. 472 ( 182 S.E. 600). it was ruled that the filing of a bill of exceptions to the decision of the judge in the hearing of a habeas-corpus case, where the petitioner is being detained under an extradition warrant, does not operate as a supersedeas, "and, pending the decision on appeal, the petitioner must remain in the condition in which he is placed by the judgment." One reason why our law makes no provision for bond in a case like this may perhaps be found in that part of the opinion of Judge Lyon in Irwin v. Jackson, supra, where he pointed out that a habeas-corpus case is not a criminal case, but a civil proceeding in which there is no eventual condemnation-money; and besides, there is no one authorized to collect or recover the money in case of its forfeiture, even if damages would lie for a breach of the bond. Mr. Justice Gilbert, in Hames v. Sturdivant, supra, added another reason: "Furthermore, if a bond be given, there is nothing to prevent the flight of the accused, and by repeated habeas-corpus proceedings he would, in effect, though each time apprehended, be able to defeat the administration of the law of the State where he is charged with a crime."
But it is contended that under the latter part of § 27-901 (supra) the plaintiff in error is entitled to bail. That section deals with criminal cases, and provides the officer before whom certain offenses are bailable. Originally the section was as follows: "Capital offenses are bailable only before a judge of the superior court; and this is, in every case, a matter of sound discretion. All other cases are bailable by the committing court." By an act approved August 21, 1922 (Ga. L. 1922, p. 51), the section was amended by adding the following: "At no time, either before the commitment court, when indicted, after a motion for a new trial is made, or while a bill of exceptions is pending, shall any person charged with a misdemeanor be refused bail." The plaintiff in error is not a person "charged with a misdemeanor." She has been convicted. She has no motion for new trial pending, and no bill of exceptions complaining of her conviction. The section just cited has no application to her case. Our conclusion is that it was not erroneous to refuse bail.
Judgment affirmed. All the Justices concur.