The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1885-01-18
Mr.. MACvEAeH-such are the facts.

taken he could be serving his sentence.
All the court here smiled.
JUSTICE HARLAN-But does not the
time he is in the penitentiary apply on
his sentence?
Mr.. MACVEAGH-It does not. because
the certificate of probable cause stays
! the execution of the Judgment.
JUSTICE GRAY-Did not the Judge ex-
ercise his discretion in refusing the bail I?
Mr.. MAcVEAGH-We claim he did
not. He refused to do so unless the de-
| fendant gavesome extraordinary reason
for showing that he should do so. In
the case of the People VS.. Folmsbee. the
Supreme Court of the State of New
York, by the judge who wrote the
opinion, said: 81 do not think the pro-
visions of the law which confers on
party the right of reviewing his trial
and sentence, were intended as a sham
and mockery; nor should those pro-
visions be SO construed as to permit
ministerial officer to nullify their Just
and humane purpose. So think the
right to let to bail should accompany
the right to and allowance of a stay of
proceedings on the judgment in all cases
and under all circumstances where a
direction for such stay is authorized, ex-
COpIillS Always. CdplIdl cases. We DG-
lieve that this decision presents at once
the law and the substantial equity of
the case now presented for decision. A
reversal of the decision of the court be-
low and an order that the appellant shall
be admitted to bail cannot result In any
injustice to anybody, while its affirm
ance might result in gross injustice to
the appellant by Furnishing him as for a
grave crime for exercising his right of
appeal to this court by sentencing him
to long term of imprisonment for ap-
pealing, although the Judge who tried
him certified that there was probable
cause for his appeal.
SoLICIToR-GENERAL PHILIPS spoke, not
to exceed ten minutes. in reply. He did
not attempt to meet the arguments of
opposing counsel; he held it was I'M
necessary for him to do so, and said :
II admit the Judge in the lower court
did not exercise his discretion" He
held that the appellant had no standing
in court, on the assumption that he had
| brought his case up under the act of
Congress of June 23d, 1874; and as a
consequence the procedure was wrong
1t was, there. ore, unnecessary for him
to meet anything advanced by the other
! side. 1t was apparent from an erasure
made in his brief, just before the argu-
ment commenced, that he had based his
position on law which had no applica-
ton to the Territories He said at is
apparent, upon the face of the petition,
that the proceedings in this case in the
Supreme Court of Utah, were meant as
a sort of appeal. For the petition sets
forth the refusal below, and alleges that
the existing Imprisonment is illegal,
which it could not be, unless the order
made upon the application made below
was null, or erroneous, and in effect,
was complained Of However, suppos-
ing the Utah statute allows of repeated
application. upon the same state OF
facts. to various magistrates, and that
this application is to be treated only as
court being virtually a first, then the
present appeal is itself an appeal fir ON
an exercise of judicial discretion"
Mr.. RICHARDS closed the argument,
and began by reading Section of the
4 Organic Art, which confers jurisdiction,
both original and appellate, on the
ESupreme Court of the Territory in
habeas corpus cases, and also provides for
appeals in such cases from that Court
to the Supreme Court of the United
States. He also quoted from the Hdbeas
Corpus act" of the Territory, to show
that the proceedings had been regular
in all respects, and that there could be
no question as to the jurisdiction of this
court in the case now before it. He
said this was an original writ in the
Supreme Court, calling upon that court
to determine the case on the facts
shown. The court treated it as pro-
4 ceeding to review the exercise of a
4 discretion on the part of the district
judge, and refused relief on two grounds
That the court would not revise the
action of the court below when it did
not appear that the discretion of that
ieourt had been abused; and also that
the court would not say defendant was
entitled to bail, because that would re-
kquire review of the decision of the
i court below, and it was doubtful wheth-
Fer the review could be had by writ of
Adbeds corpus. We submit that the
question for the court was whether, in
its judgment, the appellant should be
admitted to bail. and that it was not in
cumbent on appellant to show that the
discretion of the judge below had been
abused. It is manifest from the opinion
of the court that it has omitted entirely
to determine the case on the merits,
ana 10 decide on us own judgment as 10
what should be the rule in such cases,
but on the contrary has treated the case
as one for review and respecting which
the appellant should show error in the
court below. The court assumed that
the district judge had exercised dis
cretion which was sought to be review
ed. It will appear from the commit
ment that no such exercise of discretion
had taken place. The judge below held
that no discretion should be exercised,
but that the appellant must remain in
custody, unless, as a condition preced-
ent to the exercise of discretion, and as
basis for its exercise, he Can show
some extraordinary reason for admis-
sion to bail. Ithad been commended that
this construction of the statute was
supported by the opinion of Judge
Wallace, in eJ pdrte MARKS, 49 California
and IN &c pdrts Smaltman. 81 California
but we hold it to be an erroneous con.
, struction. The statute gives bail as q
right when the penalty is fine, and
when the penalty is imprisonment the
/ question is one of discretion. 1t is tc
be observed that the two classes cover
all cases. and the law assumes that the
!, judge will exercise discretion in al
, cases in the second class. 1t does moi
l L IL