The record-union., 1895-04-25
TEE QUESTION OF RIGHT TO BAIL.
1t Can be Denied Only in Cases of
Murder.
30 Decides Judge Catlin In the Habeas
Corpus Case of the Chinaman,
Louie Fon.

Superior Judge Catlin yesterday de-
cided that Louie Fon, convicted in the
Police Court by Justice Davis of being
vagrant, and sentenced to four months
imprisonment in the County Jail. should
be allowed TO give bail pending an ap-
peal to the Superior Court.
When Fon was sentenced by Justice
Davis his attorney, w. A. Anderson, an
nounced that an appeal would be taken.
and asked that his client be admitted to
bail. This Justice Davis refused to do,
and habeas corpus proceedings were in
stituted to determine whether Justice
Davis could legally refuse to grant the
bail. Judge Catlin's decision in full is as
follows:
The right to be admitted to bail upon
sufficient sureties in ali except capital
cases when the proof is evident anu The
presumption great is an absolute rlghte
given by Section 6 of Article l. of the
Constitution.
Section 1872 of the Penal Code provides
that after conviction of an otfense not
punishable with death defendant who
has appealed may pe admitted to bail.
Eirst-As matter OF right when the
appeal is from judgment imposing a.
fine only.
Second-As matter of discretion in all
other cases.
The petitioner was convicted in the
Police Court OF q misdemeanor and SEN
tenced TO four months Imprisonment IN
the County Jail, and has taken an appeal
from such judgment.
The discretion referred to, to do or not
to do justice, is not an arbitrary discre-
tion. 1t is discretion governed by le-
gal rules to do justice according to law
OF to the analogies of law, as near may
be' as was said in the case of ex parte
Hoge in is Cal. Reports
In this case the petitioner, if, upon the
final determination of the case he should
be found not guilty of the charge, would
In the meantime probably have suffered
good portion, if not all, of the punish
ment. Ii the law affords a means,
through the discretion of the court, 10
avert such a result it will not be di1hcult
to determine in what direction the discre-
sion OF the court should point.
In the case above cited the court re-
marked: Upon such an appeal the ulti-
mate question Is nearly always as to the
validity of the judgment under which the
prisoner is 10 suffer; and il is certainly
mot consonant to our ideas of justice il it
can be prevented by legal means, that
even While the question OF guilt or inno-s
cence is yet being agitated in the form of
an appeal, the prisoner should be under
going the very punishment and suffering
the very lnfamy which it was the lawful
purpose OF the appeal to avert"
am aware that in the case of eX parte
Marks bail was refused; but thar was
upon the express ground that under Sec
ton I243, then recently amended. a stay
OF execution upon appeal could be OBJ
tanned by certificate of probable cause.
The court said: LAS the proceedings in
execution of the sentence in criminal
case may now be stayed pending an APP
peal without the necessity OF admitting
the prisoner to bail, tits apparent that the
ends of justice 10 longer require applica-
tions of this character to be viewed with
the degree of llberality formerly prevail
ing"
The language of the court In the Hoge
case was quoted and strongly approved
by the present Chief Justice in re Adams
in 81 Cal, l67.
1t is only on appeals to the Su-
preme Court that certificates of probable
cause are provided. But for the relief
sought by the petitioner in this applica-
tlon he would be remediless. and might,
If bail WAS denied him, suffer punish
ment for an otfense of which ne may not
be guilty.
The sixteenth section of the Habeas
Corpus Act passed as early as April 20,
1880, made IL the duty of the court to pro-
ceed IN summary way ana dispose of
the prisoner as the justice of the case may
require" And the same duty, in the
same terms, is prescribed in Section 1854
OF the Penal Code.
1t does not conport with my ideas of
Justice that man charged with being a
vagrant, who is able TO give good sureties
Tor his appearance to contest the charge
should be denied his liberty pending the
investigation of the Ques ton of his inno-
cence or guilt; or, that he should, except
IN the case Of his inability to furnish the
requisite surety, be compelled to suffer
the punishment whether he be guilty OF
not.
Let the petitioner be admitted to bail in
the sum of 500, the undertaking to be in
the form provided by the code, and sub
United TO the court for it's approval.