People ex rel. Rothensies v. Searles , 243 N.Y.S. 15 ( 1930 )

Per Curiam.

No doubt the proper method of obtaining relief from excessive bail in either civil or criminal actions is by a writ of habeas corpus. (Jones v. Kelly, 17 Mass. 116; Whiting v. Putnam, Id. 174; Evans v. Foster, 1 N. H. 374; United States v. Brawner, 7 Fed. 86.) The theory is that the defendant (relator herein) is unlawfully imprisoned.

The purpose of requiring the defendant to give bail after.arrest is to secure his presence at the trial. The amount necessary for that purpose is a question of sound discretion and judgment depending upon several primary conditions that may be present in any particular case. The nature of the offense, the penalty which may be imposed, the probability of the willing appearance of the defendant or his flight to avoid punishment, the pecuniary and social condition of defendant and his general reputation and character, and the apparent nature and strength of the proof as bearing on the probability of his conviction — all these are elements which may properly be taken into consideration by the court in determining the amount of bail. (Ex parte Tayloe, 5 Cow. 39; People v. Van Horne, 8 Barb. 158, 165; People v. Tweed, 5 Hun, 382; Evans v. Foster, supra, 375; Ex parte Duncan, 54 Cal. 75; 6 C. J. 988, and cases cited.)

The admission to bail in this case was a matter of discretion. (Code Crim. Proc. §§ 552, 553.) It was exercised by the judge presiding in County Court in which the action was triable, apparently after some inquiry into the circumstances. No application was made to the same judge for reduction of bail although at the time it was fixed the amount was only tentative. Instead, with no new facts set up in the petition indicating that the bail was excessive according to tests to be applied as above stated, an application was made to a justice of the Supreme Court in a remote part of the district for reduction of bail on a writ of habeas corpus. All that was said on the subject in the petition was, “ which bail your relator charges is excessive and your relator therefore alleges that he is being confined in said jail without due process of law and by reason of such excessive bail.” On the hearing no proof was offered showing reason for reduction. No finding was made that the bail was in fact excessive, nor was there even such recital in the order •— yet the bail was reduced to half the amount fixed by the county judge. It amounted to nothing more than the review of the discretionary act of one judge by another judge on the same state of facts. The law does not contemplate that sort of procedure.

The question of excessive bail is one of mixed law and fact. To determine the question correctly, proper inquiry must be made. In moving for relief the party aggrieved should set up facts in his petition indicating that the bail has been fixed at an unreasonable and oppressive amount and is prohibitory and more than he can be expected to give under the circumstances of his particular ease. We disapprove the practice which seems to have grown up for instituting habeas corpus proceedings in.behalf of defendants under the guise that it is a case of excessive bail; and compelling the district attorney to go to different parts of the judicial district for the purpose of having the discretionary acts of the county judge, familiar with the facts, reviewed by local resident justices and bail reduced with no new facts presented and without regard to whether it is in fact excessive or not. (Ex parte Martin, 51 Cal. App. 706; 197 Pac. 365; Ex parte Duncan, supra.)

The order should be reversed on the law and the facts, the writ of habeas corpus dismissed, and the relator remanded to the custody of the sheriff of Tioga county.

Hinman, Acting P. J., Davis and Whitmyer, JJ., concur; Hill, J., dissents and votes for affirmance upon the ground that excessive bail may be reviewed by habeas corpus; that there' was sufficient formality on the return of the writ; Hasbrouck, J., dissents and votes for affirmance, with an opinion.