case; and especially where the law is against the prosecution. Bac. br. 353, Bail in Criminal Cases, D.; 3 Hill, 674, note 46. It is provided also by the Revised Statutes, in reference to cases where a bill of exceptions is taken, and a stay of sentence granted, that the court in which the trial was had, or any justice of the supreme court or circuit judge, may let the defendant to bail, upon a recognizance with sufficient sureties, conditioned that he shall appear in the court where the trial was had, at such time as the supreme court shall direct, and that he will obey any order or judgment the supreme court shall make in the premises. 2 R. S. 3d. ed. 821, sec. 26. Where a writ of error is brought after judgment, it is also provided, that if the offence charged in the indictment, for the removal of which the writ of error shall be allowed, be punishable by imprisonment in a state prison or in a county jail, any officer herein authorised to allow the writ of error, may allow a writ of habeas corpus, to bring before him the defendant in the indictment; and may thereupon let him to bail, upon a recognizance with sufficient sureties, conditioned that the defendant shall appear in the supreme court to receive judgment on the writ of error, or in the court in which the trial on the indictment shall have been had, at such time and place as the supreme court shall direct, and that he will obey every order and judgment which the supreme court shall make in the premises. 2 R. S. 3d ed. 825, sec. 21.

In the case of admission to bail after conviction, it will be perceived that the power is entirely discretionary, except that it does not exist in cases punishable with death. Nor have any well defined limits been set to the exercise of this discretion, except that bail will not be taken unless the case be very doubtful on the merits. See The State v. Ward, 2 Hawks, 443; The People v. Lohman, 2 Barb. Sup. Ct. Rep. 450. In the sections under consideration, the Commissioners have proposed to depart in some respects from the existing statutes, and in others to declare or modify the practice under them. For example, it is provided by section 613, that bail shall not be taken in capital cases, or in cases where the defendant is charged with the infliction of a personal injury upon another, likely to produce death, and under such circumstances as that, if death ensue, the offence would be murder. The latter of these cases is included in this section, not merely as falling within the principle applicable to capital cases,

but in accordance with the recommendation of a similar provision, in Liv. Crim. Code, 510, art. 197. The ground upon which the defendant is admitted to bail in any case, or, where he is admitted to bail, the test by which the amount of bail is fixed, is the inquiry whether, in all probability, he will consult his safety by omitting to appear and take his trial at the expense of a forfeiture of his bail. In capital cases, and in cases like those provided for in the last branch of this section, this inquiry is readily answered. It is true that there have been exceptions; but as an almost invariable rule, the defendant in such a case would forfeit any amount of bail, rather than encounter the peril of his life. It is for this reason, that in cases of this nature, the practice in this state has been uniform to refuse to admit the defendant to bail. The Commissioners see no good reason, why this practice should not have the express sanction of law.

Section 614 provides that if the charge be for any other offence than those just referred to, bail may be taken as a matter of right in cases of misdemeanor, and as a matter of discretion in all other cases. As to the propriety of the provision, that the defendant shall be entitled to bail as a matter of right, in cases of misdemeanor, there would seem to be no doubt. Leaving to the magistrate or court to whom the power is confided, a discretion commensurate with the character of each particular case, as to the amount of bail, it will be readily admitted, that a case cannot be conceived, drawing after it the mild punishment incident to a misdedemeanor, in which, before conviction at least,―adequate bail would not enforce the attendance of the defendant. And it is believed that in practice, no case can be found in which bail under such circumstances has been refused. In cases of felony, it is proposed to adhere to the present practice of making the admission to bail a matter of discretion; protecting the community, however, against the defeat of justice, by requiring, as is done, in subsequent provisions, that this discretion shall be exercised by the court in which the offence is triable, or by a higher class of magistrates than are authorized to determine the question of bail in cases of misdemeanor. See sections 618, 619.

The right to bail after conviction is regulated by section 615, which authorises the admission of the defendant to bail upon an appeal, where there is a stay of proceedings, as a matter of right, where the judgment imposes a fine only, and [CRIM. CODE.]

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as a matter of discretion, in all other cases except those punishable with death. The propriety of this provision, the Commissioners think is apparent. Where a fine only is imposed, a pecuniary responsibility will of course be sufficient to secure the final enforcement of the judgment. But where the judgment is imprisonment, even though the case be one of misdemeanor only, it may fail of that effect. Hence the right should be absolute in the one case, while in the other, it should be the subject of discretion. The other sections under consideration sufficiently explain themselves, and require no other remark, than in respect to the provision in section 616, that instead of bail for the appearance of the party before the magistrate on the examination, money must be deposited. The subsequent provisions of the code require thorough scrutiny, in all cases, in regard to the sufficiency of bail. For this purpose, time and opportunity for full inquiry in that respect are proposed to be afforded. It having been already provided, that the examination of the case, upon the defendant being brought before the magistrate, must be completed at one session, unless adjourned for good cause, and that the adjournment cannot be for more than two days, at each time, nor more than six days in all, unless by consent or on motion of the defendant, sec. 190, p. 87, it necessarily follows, that the process of taking bail would in most cases occupy more time than is required for the examination. By the present practice, bail cannot be taken until after the committal of the defendant. The reason of this rule probably is, that which has just been suggested. Cases have arisen, and may again arise, where its operation is hard and unjust to the defendant. This hardship should be obviated, if it can be done consistently with the claims of public justice; and the Commissioners, after much reflection, are satisfied that it cannot be better done than by the course provided in this section.

§ 611. Admission to bail is the order of a competent court or magistrate, that the defendant be discharged from actual custody, upon bail.

§ 612. The taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking

of sufficient bail for the appearance of the defendant according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum.

§ 613. The defendant cannot be admitted to bail, where he is charged,

1. With an offence punishable with death: or,

2. With the infliction of a personal injury upon another, likely to produce death, and under such circumstances, as that, if death ensue, the offence would be murder.

§ 614. If the charge be for any other offence, he may be admitted to bail, before conviction, as follows:

1. As a matter of right, in cases of misdemeanor: 2. As a matter of discretion, in all other cases:

§ 615. After the conviction of an offence 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.

§ 615. Before conviction, a defendant may be admitted to bail,

1. For his appearance before the magistrate, on the examination of the charge, before being held to answer.

But in this case, instead of an undertaking, money must be deposited, as provided in section 648.

2. To appear at the court to which the magistrate is required, by section 220, to return the depositions and statement, upon the defendant being held to answer, after examination :

3. After indictment, either upon the bench warrant issued for his arrest, or upon an order of the court commtting him, or enlarging the amount of bail, or upon his being surrendered by his bail,-to answer the indictment in the court in which it is found, or to which it may be sent or removed for trial.

§ 617. After conviction and upon an appeal, the defendant may be admitted to bail, 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 be dismissed:

2. If judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed.