Leggett v. Vannison ( 1923 )

Smith, C. J.,

delivered the opinion of the court.

The appellee was convicted of manslaughter in the circuit court of Pike county and having appealed to the supreme court ivas granted bail pending the appeal by the court in which he was convicted in the sum of seven thousand, five hundred dollars. He thereafter sued out a writ of habeas corpus before the chancellor of the district, who on the hearing thereof entered an order reducing the appellee’s bail bond to one thousand, five hundred dollars, which he seems to have given and been released. The sheriff has appealed to this court.

The appellant now moves the court: “To set aside the order of the chancellor reducing the bond of appellee herein from the sum of seven thousand, five hundred dollars to one thousand, fiven hundred dollars, and to enter an order directing the issuance by the clerk of the court below of process necessary for appellee’s arrest.”

Section 2, chapter 217, Laws of 1916 (Hemingway’s Code, section 44), which provides that:

“A person convicted of a felony, except those enumerated in section 1 (section 43) of this act, shall be entitled to be released from imprisonment on bail pending an appeal to the supreme court,” — does not designate the judge or court by which the amount of the bail shall be fixed, but when it is considered in connection with the preceding and two subsequent • sections — that is, with sections 1 and 3, chapter 217, Laws of 1916 (Hemingway’s Code, sections 43 and 45), and section 68', Code of 1906 (Hemingway’s Code, section 46) — it is clear that that power is vested in the circuit and supreme courts and the judges thereof. Consequently the court below was without the power to interfere with the action of the circuit court in fixing the amount of the appellee’s bail. Marley v. State, 109 Miss. 169, 68 So. 75, 770. In the Marley case a motion was made in the appeal from the conviction, and not in an appeal from the order entered in the habeas corpus proceeding, and the motion here should properly have been so made, but no objection on that score has been raised by the appellee. Had it been raised, however, it would, of course, have profited him very little, because an order directing the clerk of the court below to issue a capias for the appellee’s arrest would then have been made in the main case.

The motion, in so far as it prays for an order directing the clerk of the court below to issue a capias, will be sustained.

Motion sustained.