Bennett v. Davis , 100 Ga. App. 432 ( 1959 )

100 Ga. App. 432 (1959) 111 S.E.2d 733

BENNETT
v.
DAVIS, Judge.

38039.

Court of Appeals of Georgia.

Decided October 16, 1959.

Moore & Wild, Cook & Palmour, for petitioner.

TOWNSEND, Judge.

1. Code § 27-901 provides as follows: "Capital offenses are bailable only before a judge of the superior court; and this is, in every case, a matter of sound discretion. All other cases are bailable by the committing court. At no time, either before the commitment court, when indicted, after a motion for a new trial is made, or while a bill of exceptions is pending, shall any person charged with a misdemeanor be refused bail." This is a misdemeanor. Under the above Code section the applicant is entitled to bail while his bill of exceptions is pending in this court. See Allen v. Pratt, 87 Ga. App. 704 (75 S.E.2d 329) and cases there cited. Under Code § 6-1005 the bill of exceptions which is pending here operates as a supersedeas upon the applicant entering into a recognizance before the clerk with security to be approved by him in a sum to be fixed by the presiding judge conditioned for the appearance of the applicant to abide the final sentence of the court.

2. Accordingly it is the duty of the trial judge to fix bail in accordance with Code § 6-1005, following which the applicant will be authorized to enter into a recognizance before the clerk with security to be approved by her and be thence released from custody to abide the final sentence of the court.

The clerk of this court is directed to issue a mandamus absolute directed to the trial judge in accordance with this decision.

All the Judges concur.