Ex-parte Dyson

Yerger, J.: James H. Dyson was indioted for murder in the circuit court of Panola, at the May term, in the year 1852, was convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary for fifteen years. A writ of error was prosecuted by him to this court, and, after argument, the judgment of the circuit court was affirmed, two of the judges being of opinion that there was no error in the record, and one of them believing that there was. An application for a re-argument was made, and a re-argument granted, the judgment of affirmance [644] being set aside. This re-argument cannot be had until the October term of this court, and an application is now made by the prisoner to be discharged on bail, till his case can be re-argued in this court. By the constitution and laws of this state, “ all prisoners, before conviction, are bailable by sufficient securities except for capital otfenses, where the proof is evident and the presumption great.” Const., art. 1, § 17. The right of a prisoner to bail, after conviction, is not regulated by the constitution or by statute, and is governed by the rules and practice of the common law. It seems to be fully and clearly established, that the court of king’s bench could bail in all cases whatsoever, according to the principles of the common law; the action of that court not being controlled by the various statutes enacted on the subject of bail, but regulated and governed entirely by a sound judicial discretion on the subject. 2 Hale’s P. C., 129; 4 Co. Inst., 71; 2 Com. Dig., p. 6, tit. (f. 3); 1 Bacon’s Ab., 483, 493; 2 Hawk. P. C., 170; Cowp. R., 333. In the exercise of this discretion, the court in some instances admitted to bail, even after verdict, in cases of felony, whenever a special motive existed to induce the court to grant it. 1 Bac. Abr., 489, 490; 2 Hawk. P. C., 170. In this state it has been held, that the circuit courts now possess and exercise the power of bailing after conviction, in all cases not capital, whenever a sound discretion will warrant it. In cases of misdemeanor, whenever a party obtains a writ of error and supersedeas, we think this discretion ought to be always exercised in favor of bail.1 But in felonies not capital, while we admit the power of the circuit judges to take bail after conviction, we think it should be exercised with great caution, and only where the peculiar circumstances of the case render it right and proper.2 ¥e do not deem it advisable, in this opinion, to enumerate the circumstances which in our judgment would warrant the exercise of the power to bail. Each case must depend on its own [645] intrinsic merits, and we could not undertake to specify all cases in which it would be proper to bail. In the case before us, we have not been able to find any special circumstances which should induce us to allow bail. The evidence of indisposition and ill health introduced, did not, in our opinion, establish such danger of loss of life from the prisoner’s confinement as would justify us in bailing him, nor does the record contain any other peculiar facts, which render it proper to exercise the power. While denying bail to the prisoner on this application, we would wish to be understood, that it is not done on the ground that he will be refused a new trial, as that is a question which can only be determined on the re-argument of this case. Bail is denied in this case, because, upon a full inspection of the record, we do not find the existence of those peculiar circumstances which ought to- exist, in Order to warrant the exercise of the power by us. Bail refused, and prisoner remanded. Footnotes [1] Hard on Habeas Corpus, 446. [2] Hurd on Habeas Corpus, 446; Davis v. State, 6 How., 399.