The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1885-01-18

been SO intended there has been ample
opportunity, by amendment, to give the
law such effect. Until very recently
there has been entire acquiescence in the
liberal construction given the statute by
the courts, and no effort has ever been
made by any one to have it changed.
l submit, therefore, that it has been
clearly shown that it was not intended
to limit the action of the court within
such narrow bounds, and that the rea-
sonlng OF Judge Wallace in the California
cases is inapt and erroneous; that the
appellant was entitled to the Judgment
OF the court on his case as it existed
ana that there is no sanction in the law
for imposing upon a defendant, who
presents certificate of probable cause
Tor his appeal, the additional and inn
possible burden of showing some other
and extraordinary reason why he should
be admitted to bail pending the decision
of the question whether o. not he has
been legally convicted of a misdemean-
or.
No certificate of probable cause had
been granted in the California cases
cited, and it is by no means clear that
that court would have refused bail if
the defendants had had such certificate.
Judge Wallace distinctly admitted that
injustice would be done the prisoner if,
on bailable charge, he would be actual
ly punished before the court of last re-
sort should declare him to be liable to
punishment This of itself would for
bid an incarceration or confinement of
tence, when he could with legal safety be
admitted to bail. tt is idle to say that
the confinement of the prisoner is not
punishment simply because execution
of sentence is stayed The defendant
suffers by it the same Inconvenience,
the same losses, the same social disgrace
as though he were serving his time I'M
der sentence, added to which is the pal
pable injustice that will have been done
him by restraining him of his liberty if
| the decision of the Territorial court be
reversed, and of inflicting upon him a
| double term of confinement if the de-
cision be affirmed. The condition of
things in Utah, and probably other
Territories, requires liberal construc-
ton of the law relating to BAIL As in
offenses against the United States the
penitentiary is the only prison over
which the United States marshal has
any jurisdiction, and as the appellant
is not and could not under the law be
sentenced to labor, he is subjected by
detention now to the same punishment
and in the same place. as if held under
and in execution of the sentence.
If the judgment is finally affirmed
he will be practically subjected to double
punishment, because his case cannot be
heard on its merits in this court for
! several months and might not be heard
| for several years, and no part of his inn
| prlsonment pending the appeal need be
4 oraslffaI on Tho 60 h,ah he
| sentenced. If the Judgment should be
been unjustly punished by this imprison-
ment. His appeal instead of being a
boon to him, will rather prove burden,
and he had better submit at once to the
| judgment of the nisi prius court, how
ever Illegal and unjust it may be, than
to stay the judgment and prosecute his
appeal to this court. Certainly Con-
gress did not intend, when it gave the
right OF appeal in such cases, that it
should operate as an injury rather than
a benefit to the appellant; and no con-
struction should be given to any Terri
torial statute which would work such
hardship, and thus in effect render
nugatory the benefits which Congress
intended should accrue from the appeal.
In other words, the Territorial law
sh Duld be 90 construed as to give full
force to the act uf Congress. and protect
the appellantfrom punishment, in effect
as well as in name, until his case has
been reviewed by this court. ;a.--
Mr.. RICHARDS here quoted authorities to
ways to relieve the defendant from pun
ishment, until his guilt had been fully
established. So long as he was prose
cutting his appeal under certificate of
probable cause. it could not be known,
nor presumed that he was guilty; and
hence, the injustice of submitting him
to punishment before the final deter
mination of his case. 1t had been the
practice in Utah for thirty-four years
to admit to bail, pending appeal, in all
but capital cases; and it would be but
one short step from the rule here estab-
lished by the Utah courts, to declare
that defendant should not be admit
ted to bail after indictment, but that he
should begin to receive punishment
from the very moment he is accused.
The right to bail is a constitutional one,
and should extend after conviction,
pending appeal, as well as before con-
viction, and until the determination of
the case by the court of last resort. In
this way alone can the sacred right of
personal liberty. which is second only to
that of life itself, be preserved to the
citizen.
The arguments were brief, but strong,
and covered every possible point that
could be raised. The court paid marked
attention to both the attorneys for ap-
pellant, and seemed disposed to look at
the question fairly, if we can judge from
the character of the queries propounded.
1t is impossible to do justice in synop-
sis like this to an argument from which
it seems impossible to eliminate word
without injuring the sense and strength
which characterized it as whole.
10 r~---e an WANDERER.