Summary
In Crosby v. State, 191 Miss. 315, 2 So. 2d 844, 845 (1941), the Mississippi Supreme Court held that an appeal of a trial court's denial of bail was moot because the prisoner had obtained bond and been released from custody; accordReed v. Gilfoy, 246 Miss. 46, 148 So. 2d 714, 715 (1963) (finding the appeal of the trial court's denial of release on bond was moot because the appellant was no longer in the sheriff's custody but had been transferred to a mental health facility).
Summary of this case from Simpson v. StateOpinion
No. 34558.
June 14, 1941.
CRIMINAL LAW.
Where defendant charged with child desertion appealed from an order denying bail and presented to member of Supreme Court a petition for bail pending appeal and the member ordered discharge of defendant on bond obligating defendant to appear before State Supreme Court pending outcome of appeal and to appear in the circuit court from term to term therein, appeal from order denying bail was dismissed as presenting a "moot question," since defendant was out of jail on a valid bond (Code 1930, secs. 861, 1246, 1247, 1254).
APPEAL from the circuit court of Simpson county, EDGAR M. LANE, Judge.
E.L. Dent, of Collins, for appellant.
We concur in the statement in the brief of the distinguished and learned assistant attorney general, where he says that the question here involved should not be adjudged to be moot.
We respectfully submit that the offense charged is not capital, and the right of trial by a jury being inviolate, under the constitutional provisions of our state, appellant, as a matter of right, is entitled to bail before conviction, and this is true regardless of his conduct, and to construe the provisions of our constitution otherwise would be equivalent to permitting the trial court to convict and confine in jail a party without the benefit of bail even though the constitution guarantees the party the right of a trial by a jury.
Geo. H. Ethridge, Assistant Attorney-General, for appellee.
The question here involved should not be adjudged to be moot because the principle involved is one worthy of the attention and decision of the court for the guidance of the circuit judges of the state, and also for the guidance of bailsmen.
Appellant was indicted on a charge of child desertion under Section 861, Code 1930. He gave bond but failed to appear at the September, 1940, term of the circuit court, and a judgment nisi was taken on his bond. In December, 1940, after some efforts on the part of his bondsmen, he returned to the State and to the county and was confined in jail. On January 24, 1941, he filed a petition for a writ of habeas corpus, under which he sought the right to furnish such bail bond as would be required by law; but the circuit judge denied bail on the ground that the previous conduct of appellant had disclosed that he had no regard or respect for a bond and its obligations.
From this order denying bail, an appeal was taken. On February 3, 1941, appellant presented to a member of this Court a petition for bail pending appeal, and an order was made by a member here allowing the bail and fixing the amount, and ordering the discharge of appellant on that bond when given and approved. The bond was given and approved on the same day, and appellant was released from custody.
The bond, as given, obligated appellant "to appear before the State Supreme Court pending outcome of appeal in habeas corpus case and also on the first day of the next regular term of said Circuit Court, which convenes on the 2nd Monday of March, 1941, and there remain from day to day and term to term to answer said charge." Under Sections 1246, 1247, and 1254, Code 1930, the bond last mentioned is as good and valid as had the circuit judge allowed the bond in the habeas corpus proceeding. Appellant is out of jail on a good and valid bond requiring him to appear in the circuit court and from term to term therein, from which it follows that the issue whether the circuit judge should have allowed him bond in the habeas corpus proceeding has now become nothing but a moot question, and the appeal which involves that question, and nothing else, must be dismissed.
Appeal dismissed.