People ex rel. Hummel v. Reardon

This appeal involves the sole question whether a person convicted of a crime not punishable with death may

The relator was convicted of the crime of conspiracy in Hew York county and sentenced to pay a fine of five hundred dollars and to imprisonment for one year in the penitentiary, and was thereupon committed to the city prison. Upon the same day an order to show cause was granted why a certificate of reasonable doubt should not be granted and a stay of execution directed meantime, and at the same time an order was made admitting the defendant to bail until the hearing >f said application. The relator having thereupon been' fearrested upon the theory that the allowance of bail pending the hearing of said motion was without authority and illegal, habeas corpus proceedings were instituted, resulting in his discharge from such custody. This order, upon appeal, was Inly affirmed, but, as I think, erroneously so.

The determination of the question presented for our consideration requires an examination of several sections of the Oode of Criminal Procedure.

Section 527, entitled “ Stay of Proceedings on Appeal,” provides that “ An appeal to the Appellate Division of the Supreme Court from a judgment of conviction * * * stays the execution of the judgment * * * upon filing, with the notice of appeal, a certificate of the judge who presided at the trial, or of a justice of the Supreme Court, that' in his opinion, there is reasonable doubt whether the judgment should stand, but not otherwise.”

Section 529 provides: “ The certificate (of reasonable doubt) mentioned in the last two sections (527 and 529) cannot, however, be granted upon an appeal on a conviction of felony or misdemeanor until such notice as the judge may prescribe has been given to the district attorney of the county where the conviction was had, of the application for the certificate, accompanied by a formal specification in writing of the grounds upon which the application is based, but the judge may stay the execution of the judgment until the determination of such application.” Said section also provides

Section 555 provides that “ After the conviction of a crime not punishable with death, a defendant, who .has appealed and when there is a stay of proceedings, but not otherwise, may be admitted to bail:

“ 1. As a matter of right, when the appeal is from a judgment imposing a fine only ;

“2. As a matter of discretion, in all other cases.”

Section 556 regulates the nature of bail after conviction and upon appeal, and to its terms I shall refer more in detail hereafter.

There is no doubt but that the judge granting the order to show cause why a certificate of reasonable doubt should not be granted, had the power under section 529 to stay execution of the judgment of conviction against relator until the determination of such application. It may also be granted that section 555 read literally and ,by itself is broad enough to cover the admission to bail of a defendant pending an application for a certificate when there is a stay of proceedings granted as provided in section 529. But I believe that a broader and more comprehensive view not only of section 555 but of other related sections and of the general trend of criminal procedure upon appeal from conviction will justify the conclusion that said section does not contemplate admission to bail under such a temporary and incidental stay of proceedings, but relates to- admission to bail upon an appeal where a more permanent stay has been secured through the granting of a certificate of reasonable doubt, as provided in section 527.

Before statutory enactment to that end a person convicted of a criminal offense had no right of appeal. Under the Revised Statutes there were available the two methods of reviewing a conviction, either by certiorari before judgment

Without considering these proceedings in detail, it is to be noted as bearing upon subsequent legislation and making plain the tendency toward greater caution in granting the applications of convicted persons for stays and admission to bail, and thus indirectly bearing upon the specific question at issue, that no notice to the People was required of the application for either writ or for stays or admission to bail of convicted persons. And an examination of the judicial records and literature of those times, and of the suggestions made in connection with the recomrpendation of adoption of a Code of Criminal Procedure, leaves no doubt that those former methods of review were not only cumbersome, but that oftentimes they were accompanied by undue delay, and laxity in granting .stays with resulting admission to bail.

The Code of Criminal Procedure was adopted and concededly it supplants the prior methods of review, and entirely and exclusively provides for and measures the defendant’s rights upon appeal from a conviction, so far as those rights are subject to statutory control. Here, again, it is desirable to note especially certain provisions in the sections already referred to, concerning .appeals as expressive of the requirement for greater vigilance in granting stays and admitting to bail.

Bail can be received only when a stay of proceedings has been granted, and a permanent, substantial stay of proceedings can be secured only when a certificate of reasonable doubt has been granted, after notice to the People through their representative officer, upon due specification of alleged errors, and even this certificate and resulting stay may be vacated if the defendant delays the hearing of his appeal. This line of provisions, beyond question, prevents a defend

So much for the reasoning which seems to rest upon principles of general policy. It seems to me that the details of the sections relating to bail confirm that reasoning.

Section 556, which alone provides for the nature of the bail to be taken under section 555 when there is a stay of proceedings, requires bail from the defendant as follows :

“ 1. If the appeal be from a judgment imposing a fine only, on the undertaking of bail, that he will pay the same, or such part of it as the appellate court may direct, if the judgment be affirmed or modified or the appeal dismissed, or the certificate of reasonable doubt be vacated as provided in section five hundred and twenty-nine.

It is apparent at once that the undertaking above provided for is adapted to a release upon bail pending final disposition of the appeal, and is not at all adapted to such release under the temporary stay pending application for a certificate of reasonable doubt. The section assumes that a certificate of reasonable doubt has been granted, and, therefore, relates to bail under a stay following such certificate and not to bail under the temporary stay preceding such certificate. It is said that this clause was incorporated into the section by amendment and, therefore, is not significant as indicating the purpose of the statute. If we should grant this explanation to be more effective than I really think it is, we still find the other provisions of the section equally requiring an undertaking binding the defendant to answer a final disposition of his appeal, and not an unfavorable disposition of his application for a certificate. In fact the learned Appellate Division ultimately seems to concede that there is no. pro vision for an undertaking to be executed by a defendant upon release upon bail pending his application for a certificate. But it is said that if the statute has provided that he may thus be released he will not be deprived of this right by reason of this omission ; that it is a casus omissus and not important. This seems to me to be a begging of the question.

The statute has provided for one stay of proceedings following a certificate that there is merit to the defendant’s appeal, which is a very substantial right and which ordinarily will continue until the final disposition of the appeal. It has provided for another stay which is temporary and incidental to an application. Then it has provided that a defendant may be released upon bail when there is. a stay of proceedings, and in prescribing the conditions of the undertaking to be executed adapts it entirely to a release under the former

Finally it is urged that such interpretation and conclusion may result in the temporary confinement of one who has a meritorious appeal, and will be harsh and unjust. I believe that this objection will prove to be rather based upon a fear than sustained by reality, and that not many persons convicted of criminal offenses and who have good grounds for appeal will be treated with undue severity. We may anticipate that a judge before whom has been conducted a criminal trial will be able to determine with fair accuracy whether a conviction rests upon debatable grounds, and that if it does a certificate will be granted forthwith and the defendant saved from imprisonment pending the determination of his appeal. A judge other than the one before whom the trial has occurred has the power, by prescribing short notice to the district attorney, to compel a prompt determination of the application for a certificate.

Remembering always that the statute by granting any right of review has secured to convicted j>ersons a favor which they otherwise would not enjoy, it will not be too much if the construction adopted, under the safeguards mentioned, does result in treating a judgment of conviction obtained by due process, legal and entitled to enforcement even to the extent of taking the defendant into custody unless and until some duly constituted authority shall certify that reasonable grounds exist for questioning its correctness.

' We can hardly close our minds to the fact that at the present time the universal trend in public discussion of our sys

The fact has not been overlooked that a somewhat lengthy discussion has been given to a question which so far as this case is concerned has become academic. We have been assured, however, and readily have been able to see that the question here presented is an important one and liable to arise with much frequency, and under such circumstances it has been deemed wise to express our views in the case now presented for guidance in the future.

The argument has been advanced that independent of the merits of the underlying question the order, releasing the relator was properly affirmed by the Appellate Division because at the time said latter court made its decsion a certificate of reasonable doubt had been granted entitling the defendant to be released uponbail and that such a fact could be taken into account as justifying the original order.

I do not find in the statute relating to habeas corpus any provision, or in the law relating thereto any established principle, which seems to warrant the view that an order in a statutory proceeding erroneous upon the facts existing at the time it is made may be affirmed upon appeal because meantime some step has been taken which under independent and different provisions justifies the same result which was originally secured by the erroneous order.

In his application for a writ of habeas corpus the relator by his petition was required to set forth “ the cause or pretense of the imprisonment or restraint according to his (the) best knowledge and belief.” (§ 2019.) The person to whom, the writ was issued was required by his return to set forth the authority and true cause of the imprisonment or restraint.

The order should be reversed, but inasmuch as the defendant has now been released upon bail under a stay following a certificate of reasonable doubt, it is unnecessary to direct that he should be remanded to custody.

(dissenting). The appeal in this case is from an order of the Appellate Division, which unanimously affirmed an order of the Special Term sustaining a writ of habeas corpus and admitting the relator to bail. The only question presented is whether this order made by the learned court below is affected with any legal error. There is no other question in the case that this court can. review.

Singularly enough it is asserted and urged by both parties upon this appeal that the question is purely academic, that whatever way it may be decided here, it can have no effect upon the parties to the controversy. The learned district attorney at the close of his brief, after stating that the order should be reversed, concludes with the following statement:

It will be seen from what has been said that this contro

There is no dispute about the power of the judge in this case to grant a stay of proceedings pending the application. (Code Crim. Pro. § 529.) He did grant a stay and concurrently admitted the relator to bail. That is the only error qpmplained of. It is provided by section 555 of the same Code that a defendant convicted of a crime not punishable with death may be admitted to bail in a case where he has appealed, and when there is a stay of proceedings. In this case the relator had appealed before the bail was allowed, as appears from his replication to the traverse in the record.' There was a stay of proceedings also, and so the case is brought directly within the plain words of the statute. The relator had been convicted of conspiracy. He had appealed. He had procured a stay of proceedings, and so the case falls directly within the plain words of the statute. The judge had the power to grant a stay pending the application for the certificate of reasonable doubt, and he had the power to admit the relator to bail in a case where he had appealed and where there was a stay

But there is another view of this case which seems to me to be conclusive against the appeal. The learned court below, as a court, had the power and it was its duty to sustain the writ of habeas corpus if it had the necessary facts before it.

In this respect it is required to act as a court of original jurisdiction, and every member of the court sitting alone possessed the same power and was charged with the same duty. (Code Civ. Pro. § 2017.) There is no dispute about the fact that when the learned court below made the order appealed from it had before it every fact and every document that called for the relator’s discharge, and, hence, it was right in sustaining the writ, even if there was any question as to the power to admit the relator to bail pending the application for the certificate of reasonable doubt. The principle is well settled that a court of review is not necessarily bound to reverse a judgment or order for some defect in the original proceeding. If the defect consists in the absence of a document or record it may be produced on the argument with the same force and effect as if produced on the original application. (Jarvis v. Sewall, 40 Barb. 449 ; Catlin v. Grissler, 57 N. Y. 373 ; Wines v. Mayor, etc., of N. Y., 70 N. Y. 613 ; Matter of Cooper, 93 N. Y. 507 ; Dunham v. Townshend, 118 N. Y. 286 ; Stemmler v. Mayor, etc., of N. Y., 179 N. Y. 482 .)

And yet it is contended that the learned court below should

Cullen, Oh. J., Gray, Edward T. Bartlett, Werner and' Chase, JJ., concur with Hiscogk, J.; O’Brien, J., reads dissenting opinion.

Order reversed.