
    Hampton v. The State.
    1 In a criminal case “ except for capital offenses where the proof is evident or the presumption great ” (Const. Art. 1, § 9), after a verdict of guilty and before sentence, the court may, in its discretion, take a recognizance for the appearance of the prisoner to abide the judgment of the court.
    2 After failure so to appear and on forfeiture of the recognizance, the sureties are liable on the recognizance.
    Eekoe to the District Court of Gallia county.
    "William G. Hampton was indicted in Gallia county for burglary and for grand larceny. ' He was tried and convicted of burglary.
    When the jury returned into court with their verdict, thé defendant was in court; on the rendition of the verdict of guilty, he was ordered by the court into the custody of the sheriff, and the sheriff so took and held him.
    The Journal entry in the case reads as follows :
    “ And thereupon the defenda'nt by his counsel gave notice of a motion for a new trial; motion filed. And thereupon personally came the defendant, William G. Hampton, and with him personally came also John T. Hampton and John 13. Clendinen, before the clerk of this court, and who each jointly and severally acknowledged themselves to owe the State of Ohio the sum of two thousand dollar ($2,000), to be levied of their goods and chattels, lands and tenements, if default be made in the condition following, to wit: That if the said William G. Hampton shall personally be and appear before this court on Thursday, March 22, A. D. 1883, and from day to day thereafter when called, and abide the judgment of the court thereon on said indictment, and not depart without leave, then this recognizance shall be void, otherwise to be and remain in full force and effect in law. Thereupon the motion for a new trial in this cause is set down for hearing on Thursday, March 22.” This was during the same term.
    
      William Gr. Hampton, until so ordered into the custody of the sheriff, was under a. $500 bond for his appearance in the case. He did not appear in court on the 22d day of March, but left the state and remained absent. The recognizance was forfeited at that term of court.
    Action on this recognizance was brought and judgment for the full amount was rendered against the plaintiffs in error, John T. Hampton and John B. Clendinen; this judgment was affirmed by the district court, and plaintiffs in error now seek to reverse the judgments of the courts below.
    
      Samuel Nash and A. J. Green for plaintiffs in error :
    A court of common pleas has no power to take a recognizance after conviction of a felony. State v. Clark, 15 Ohio, 599. The theory and spirit of the legislation of the state, and the decisions of this court, is, that bail, in felonies that are bailable at all, shall be taken only when the presumption of innocence — doubt of guilt — prevails ; when that is overcome and removed by conviction, imprisonment must follow. It is the conviction — the verdict — after trial, that settles the question of guilt or innocence, until the effect of that conviction lias been annulled by reversal. 2 Coke Inst. 188; 2 Com. Dig. Bail, F. 2; People v. Lohman, 2 Barb. 450. The jurisdiction of the courts of common pleas and the judges thereof, shall be fixed by law. § 4, art. 4, of the constitution. The constitution confers no jurisdiction. Stevens v. State, 3 Ohio St. 453 ; State v. MoGehan, 27 Ohio St. 282 ; McGill v. State, 34 Ohio St. 271. The ' legislation having given no authority to admit to bail after conviction,1 none exists. Hence the recognizance in this case is absolutely void. Powell v. State, 15 Ohio, 580 ; Sargent v. State, 16 Ohio, 276; 7 Mass. 280 ; 11 Id. 337; 16 Id. 198.
    
      W.H. O. Eekers, prosecuting attorney, and O. M. ILglcoml), for defendant in error :
    By the constitution of the state all persons are bailable, by sufficient sureties, except in capital cases, and there also unless the proof be evident or the presumption great. In capital cases it is a matter addressed to the mind of the trial judge, as to when a person is bailable or not. Section 9, article 1 — of the Bill of Rights. Then by this section, and proTision of our constitution, no restriction as to the time when the taking of bail shall end, is placed upon the court, the power of taking bail is by this section of our constitution given exclusively to the courts. And there this power to admit to bail remains until limited or qualified by the lawmaking power. See Rev. Stats. §§ 7321; 7325 ; State v. Levy, 24 Minn. 362. At common law, courts of superior jurisdiction possessed the power, though it was exercised rarely, and only when special circumstances existed to justify it, to admit to bail after verdict and before sentence. 1 Bae. Ab. 588, title “ Bail; ” 1 Bish. on Cr. Pr. § 696 ; 1 Caines R. 72, McJSfeil ease ; Commonwealth v. Field, 11 Allen, 488; 24 Minn. 368.
   Follett, J.

The plaintiffs in error seek to avoid liability on the recognizance, on the ground that the court had no power to take the same and permit the prisoner to go out of the custody of the sheriff.

The recognizance was the mode by which William Gr. Hampton -was taken from the custody of the sheriff and delivered to the plaintiffs in error, who thereby became entitled to his custody, and they were responsible for his appearance in court as per the terms of the recognizance; and at any time before default they could have taken him by force and surrendered him.

By the common law, all offenses, including treason, are bailable, though the high crimes are so not of right but only in the discretion of the court. 1 Bac. Ab. 588-596; Reg. v. Barronet, Dears. 51; 1 Bish. Cr. Pr. § 256.

There was complaint that this judicial discretion was abused to the great damage of prisoners, even by Lord Mansfield ; and, to guard as far as possible the rights of individuals, the people of Ohio placed in her constitution, section 9 of the Bill of Rights, the following: “All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great.”

This fundamental provision the laws and the courts carefully guard. The only other restrictions upon the exorcise of this power are the following statutes: In cases of misdemeanor, the Revised Statutes, by § 7321 and § 7322, provide that the execution of a sentence or judgment may be sus. pended on giving a proper recognizance ; and, in cases of felony, the Revised Statutes, § 7325, provide: “.When a person is sentenced for a felony, and execution of the sentence is suspended, the court shall order him into the custody of the sheriff to be imprisoned until the case is disposed of.”

The power to admit to bail is amply given to the courts, and is incidental and necessary to the due administration of justice; and this power is not taken away until the prisoner, found guilty of a felony, has been sentenced.

Thus it is clear that after conviction and until sentence, the court has power to admit to bail. The object of bail is to secure the appearance of the one arrested when his personal presence is needed; and, consistently with this, to allow to the accused proper freedom and opportunity to prepare his defense. The punishment should be after the sentence.

We do not say that after a verdict of guilty of felony, the prisoner, on tendering sufficient bail, can demand as of right his discharge from the sheriff’s custody, pending his motion for a new trial; we only say, the court, in the exercise of a wise judicial discretion, may so admit to bail.

The court might be satisfied that the testimony did not warrant the verdict of guilty, or that the prisoner’s life would be endangered by his imprisonment. This position is established by numerous authorities both English and American, some of which are cited in 1 Bishop on Criminal Procedure, § 256. The case of State v. Levy, 24 Minn. 362, fully sustains this decision. See also Ohio v. Summons, 19 Ohio, 139, where it is held that: “ The court will not, as a matter of course, admit to bail because the jury in a trial for murder have not agreed upon a verdict. If the evidence exhibited on the hearing of the application, be of so weak a character that it •would not sustain a verdict of guilty against a motion for a new trial the court will admit to bail.” And our laws do not prohibit this power until aftor sentence. Rev. St. § 7325. And in all cases of felony after verdict of guilty, the court, on application to admit to bail, will take into account the verdict rendered in the case, and in the light of all the facts can administer justice by a due exercise of judicial discretion and legal power.

In this case the court had power to take the recognizance, and the plaintiffs in error are bound by' their obligation.

Judgment affirmed.  