The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-04-22
BAIL TO ABE HUMMEL STANDS.
Appellate Division UnanimouSiy sustaInS
Justice Woodward's Course.

Justice Woodward's Course.
The Appellate Division OF the Supreme
Court In Brooklyn has handed down a de-
cision unanimously affirming the decision
OF Justice John Woodward of the Appellate
Division in admit n Abe Hummel to
bail in the sum OF $40 900. The opinion
is written by Justice Gaynor and is oon-
CURED in by Justices Hirschberg, jerks,
Hooker and Rich.
December 30 last Hummel was con-
victed OF conspiracy in connection with
the Dodge-Morse divorce case and was
sentenced to a years imprisonment and O
fine OF $500. He was taken to the Tombs
and locked up, but the same day Justice
Woodward was appealed to and he granted
an order that District Attorney Jerome
must show cause why a certificate Of reason
able doubt should not be issued. At the
same time he released Hummel on $40, 900
bail. District Attorney Jerome was in
censed at the action Of Justice Woodward
in admitting Hummel to bail and contended
that the Justice had no jurisdiction in the
matter, He began proceedings to test
Justice Woodward's right to admit a con-
viIcted person to bail pending the granting
OF a certificate Of reasonable doubt. The
result was that Mr.. Hummel, who with
counsel was in Justice Woodward's office
AT the time, was rearrested and Immediately
q writ OF habeas corpus was granted and
Justice Woodward granted the writ releas-
ing Hummel from arrest. Then an appeal
was taken to the Appellate Division against
Justice Woodward's decision,
Justice Gaynor explains the law at con
siderable length and concludes as follows:
The requirement of notice to the District
Attorney and service upon him Of a specifca-
ton of the grounds of the application. before
a certificate OF reasonable doubt, which oper-
ates as a stay pending the appeal. can be
granted. Ia not. in the absence of language
indicating Il contrary intention on the part OF
the Legislature. to be taken as an implied
deprivation of the power of the Justice to whom
the application is addressed to let the de-
PENDANT to bail pending the application. when.
in the exercise of the power expressly given
him by the same section, he has stayed the
execution of the Judgment for the purposes
of the application.
These requirements serve a useful purpose
in preventing the issuance of ex parte stays,
operative until final judgment, but they do
not require the arbitrary imprisonment OF a
defendant who in good faith intends 10 prose-
cute an appeal upo grounds which prima
facie satisfy the Judge to whom the applica-
ton is made that there is reasonable doubt
whether the conviction should stand. The
supposition that the legislature intended
that a convicted defendant, though abun-
dainty entitled to a stay pending appeal, must
undergo actual Incarceration In order to af-
ford the District Attorney an opportunity
to contest his application is utterly at v%ariance
with the motive and spirit OF the legislation
consideration. which was intended
to postpone the inniction Of the penalty fol-
a conviction of doubtful validity.
This purpose would not be furthered by the
in jail of a defendant prima facie
entitled to a stay and bail whose surrender
in execution OF the Judgment could be as
sured by a sufficient undertaking A tenn
porary stay, so far from being of any benefit
to a defendant, would operate to his distinct
disadvantage unless bail were allowed. for
the only encct would be to add to the term
of the sentence n period of preliminary i'm
p%risonment. We cannot believe the Tegisla-
contemplated any such incongruity.
The District Attorney lays some stress
upon the fact that the Code, while nrescrib-
ing the form of undertaking to be given
where there Is a stay pending appeal, makes
no provision for an undertaking for the de-
fendant's surrender if his application for such
a stay IL denied. We regard this as a mere
casus omissus. The power TO let bail In either
case being expressly conferred. the absence
Of an appropriate statutory form Of bond
not prevent the exercise Of that power.