Opinion
No. 38803.
May 11, 1953.
1. Habeas corpus — bail — impairment of health.
A judgment in habeas corpus denying bail to a convict of murder pending appeal and on the ground that further confinement in jail would greatly impair his health or endanger his life, may be affirmed on a reversal of the conviction without prejudice to the right of the petitioner to ask for bail on the stated grounds pending a new trial.
Headnote as approved by McGehee, C.J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, Judge.
Wingo Finch, for appellant.
We submit that the testimony in support of the petition shows that the appellant was in a very bad physical condition, and that continued confinement in the jail for several months would likely produce death or greatly impair his health and poor physical condition.
Our Court has heretofore subscribed to the theory of encouraging the granting of bail in proper cases.
In the case of Ex parte Morman, 112 Miss. 15, 72 So. 835, the Court held that the circuit judge erred in denying relator bail, upon a showing that in habeas corpus, the prisoner's health had been impaired by long confinement in the jail pending trial.
We now cite the last case on the question of right to bail, being that of Wooton v. Bethea, Sheriff, 47 So.2d 158, wherein the Court announced it to be the policy of bail statutes generally to encourage the granting of bail in proper cases.
J.T. Patterson, Assistant Attorney General, for appellee.
The testimony of the three doctors appointed by the court to examine the appellant agrees with the diagnosis made by the doctors testifying on behalf of the appellant; however, their testimony is that the appellant can be treated for his ailments in jail and that his confinement, with proper treatment, is not likely to produce death.
It will be observed that all of the doctors testifying agree that the best treatment for ulcerated stomach is proper diet and rest. They all agree that anxiety and worry tend to aggravate an ulcerated stomach. It will also be observed that all of the doctors examining the appellant found his heart to be normal, and his blood pressure to be normal. It is also shown that the appellant is being afforded medical attention and proper diet. It is also shown that the sheriff is permitting the appellant, or will permit the appellant, to obtain the services of any physician he may desire at any time, and to obtain any food he may desire, at his own expense. This, of course, is all that the appellant could do for himself were he released on bond.
The cases cited by the appellant are cases wherein appellant sought release from custody on bond before trial and conviction.
This Court, many years ago, in Hill v. State, 1 So. 94, announced the rule governing such cases. The statute provided then, as it does now, and, in passing thereon, the Court said, "It denies bail to a convict of felony, except in the discretion of judge or court, `to be exercised with the greatest caution, and only when the peculiar circumstances of the case render it proper in the opinion of such court or judge.'"
In Winegarden v. State, 39 So. 1013, this Court held, "The refusal of bail pending appeal from a conviction for grand larceny of a defendant forty-nine years of age, because of alleged ill-health, consisting of heart disease, asthma, catarrh, and indigestion, was not an abuse of discretion."
In this case the Court further stated, "The court below, in the exercise of its statutory discretion, refused bail after hearing and seeing the witness, and we do not think it proper in this case to disturb the conclusion."
This is a habeas corpus proceeding, instituted on October 4, 1952, by the petitioner, G.W. Martin, to secure his release from the custody of the respondent, J.E. Pittman, Sheriff of Jasper County, who was holding him in jail on account of the fact that he had been convicted of the crime of murder on August 22, 1952.
The petitioner sought his release from custody on the ground that further confinement in jail would greatly impair his health or endanger his life pending his appeal from the conviction of murder to the Supreme Court. The trial judge denied the petitioner bail at the hearing on the petition for the writ of habeas corpus, and he prosecuted this appeal. Thereafter, on December 13, 1952, the petitioner filed a motion to have the cause advanced for hearing on the docket of this Court, which was accordingly done, and the case was set for hearing and was submitted for decision on the second Monday in February 1953.
In the meantime, the appeal of the case from the conviction of murder had been perfected and the cause was placed on the docket for hearing on the merits as Cause No. 38,717, and the same is being this day reversed and remanded for a new trial.
In view of the fact that this habeas corpus proceeding was not advanced on the docket for hearing prior to the second Monday in February, the motion therefor not having been filed until December 1952, we have withheld a decision herein pending the decision on the appeal from the petitioner's conviction of murder.
The question of allowing appellant bail during the period that he will be awaiting another trial under the indictment for murder, has now been considered in conference by seven members of the Court and with the result that a majority have reached the conclusion that the judgment of the trial court in denying bail pending the appeal on the merits in Cause No. 38,717 should be affirmed, but without prejudice to the right of the petitioner in this habeas corpus proceeding to ask for bail pending another trial on the charge of murder in the light of any proof that he may be able to make as to his present state of health and the likelihood of further confinement having the result of impairing his health or endangering his life. Some of the judges participating in this decision are of the opinion that the petitioner made a sufficient showing on the hearing of the petition for habeas corpus to entitle him to be released from confinement, and that it was error to deny him bail pending the appeal in said Cause No. 38,717. On the vote of the majority the cause will be and the same is hereby affirmed without prejudice.
Affirmed.