
    The State of Ohio vs. Don R. Clark and others.
    A recognizance to let to bail on tlie allowance of a writ of error, after conviction, is not authorized by the a'ct allowing writs of error in criminal cases, and is therefore void.
    This is a Writ of Error to the Court of Common Pleas of Summit County.
    The original action was debt, upon a criminal recognizance. The facts were as follows :
    At the May term, 1843, of the Court of Common Pleas of Summit county, Don It. Clark was convicted of grand larceny. and sentenced to the Penitentiary for the term of three years. Application was made for the allowance of a writ of error, under the act allowing writs of error in criminal cases. The writ was allowed, made returnable .forthwith, the judgment of the Court ordered to be suspended, and Clark to be let to bail in the sum of one thousand dollars, and discharged from custody. The condition of the recognizance was, that said Clark should prosecute his writ of error to effect, or surrender himself to the sheriff if said judgment should not be reversed. The judg-' ment of the Common Pleas was affirmed, and Clark fled the country. The other defendants were Clark’s sureties in the recognizance.
    In Bank.
    Dec. Term, 1846.
    To the declaration filed in the cáuse the defendants demurred, and the Court of Common Pleas' sustained the demurrer and gave judgment against the State for costs.
    To reverse this judgment this writ was sued out; the errors assigned being, first, that the Court erred in sustaining the demurrer, and second, in rendering judgment against the State for costs.
    
      W. S. C. Otis, for the State.
    I maintain that the Judge allowing the writ of error had power to make the order which he did in the premises, and that the bond executed in accordance with the order was good and valid in law.
    The policy of our government and laws is to secure the liberty of every citizen, unless his restraint be imposed as a punishment, or to secure his appearance to answer to a criminal charge. Hence the provision in the constitution, “ that all per- '■ sons shall be bailable by sufficient sureties, unless for capital e offences,” &c.
    The right to admit to bail is a common law right, and the constitutional provision confers no new right. The court of King’s Bench, having a supervision over all other courts, has always exercised the power of admitting to bail, as well after 
      as before conviction, in their discretion. 1 Hale’s P. C. 108; 2 Hawk. Rep. 443 ; 3 Hill’s Rep. 676.
    The Supreme Court of any of the States of the Union, or any one of the Judges thereof, having a like supervisioh over other courts, have the same power in relation to bail in criminal cases as the King’s Bench in England, unless restrained by the constitution or by statute. 5 Cow. Rep. 39; 1 Gall. Rep., 488; 1 Story on Con. 140; 2 Ibid. 264, 268.
    The question whether bail shall be taken or not is, in all cases-of felony, purely judicial. The statutes, in giving power to bail, create no new ministerial duty. 3 Hill’s Rep. 673; 10 Wend. Rep. 464.
    . The constitution and laws of Ohio, it is conceded, do restrain Courts from receiving bail in capital cases, but leave the • matter in all other cases as at common law, subject to' judicial discretion. ' .
    As far as it regards the powers and principles involved in this case, the case of Morris v.. Marcy and others, 4 Ohio Rep. 83, is almost, if not altogether in point.
    
      R. P. Spalding, for the Defendants.
    Waiving the discussion of the question whether, at common law, the power to let to bail, as well after as before conviction, is inherent in the office of a Judge of the Supreme Court, it-is sufficient to reply, that that implied power is, in this State,, controlled by express legislative enactment. The statute has made provision for letting to bail in certain eases, and pointed out the mode of -proceeding, and prohibited it in others, and no where is the power conferred to let to bail after conviction.
    If, then, the power to let to bail and take a recognizance after conviction is not conferred by statute, the recognizance is void, either as a statutory or common law obligation. 11 Mass. Rep. 337; 7 Pick. Rep. 231.
   Read, J.

The whole question in this case is, whether the ^edge, allowing the writ of error and directing a suspension of the execution, had authority to discharge upon bail. This had been done in several instances, after the passage of the act allowing writs of error in criminal cases. If the Judge directing the recognizance had no power to let to bail, it is void. We have decided this point at this term, in the case of Powell v. The State of Ohio. If the recognizance is not good as a statutory bond, it is not good at common law.

It is contended that, the 12th section of the eighth article of the constitution, which declares that all persons shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption; great, confers the power to let to bail, as exercised in this instance; and that the habeas, corpus act recognizes the same principle.

It is claimed that, at common law, all felonies were bailable until limited by .statute, and that the Court of King’s Bench exercised this power as well after as before conviction. For the power to bail, and its mode of exercise, we look to our own constitution and laws. Although the jurisdiction and power of the Court is conferred by the constitution, it is to be exercised in the mode pointed out by the statute. It is true that the constitution confers sufficient power to authorize the Legislature, by statute, to permit bail, as well after as before conviction. This power has been both exercised and prohibited, in the very act under consideration, according to the grade of offence ; forbidding, upon the well known rules of construing statutes, to discharge upon bail in capital or penitentiary cases, and directing that bail in all other cases may be taken, until judgment be reversed or affirmed. Prior to this act, writs of error were not allowed in criminal cases, and a suspension of execution could only result from executive pardon or respite, or a continuance by the courts. The act allowing writs of error in criminal cases, directs a suspension of execution in capital and penitentiary cases,, until the writ of error shall be finally .disposed of;'but-in all other cases makes the suspension of execution to depend upon entering into a recognizance, conditioned to proseohte his writ of error to effect, and to surrender himself to the sheriff of the county'in which conviction was had, .unless the judgment be reversed or a new trial ordered.,- The-Statute,, then,'has rected the mode and incidents of .the application and allowance, of a writ of error in criminal cases., ,-Th'e' person convicted, is ■in á ¡better, condition- than before this statute was enacted.' If-it had not been enacted the-judgment-'could have been át once carried into execution. The constitution did not'forbid that, or authorize bail. Why, then,-after conviction, if-the Legislature -see proper to suspend sentence, for the benefit of the prisoner, should the constitution step in and direct bail ? If, after conviction, there is '• power to order' immediate' execution, why should a more merciful and - favorable exercise of power, in behalf of the prisoner, create an additional right to bail? 'We can perceive n.o solid 'reason for any such construction-. Before conviction, all persons, as -limited by the constitution, are bailable. After- conviction, it depends upon the ‘statute whether they shall be -let to bail or not. In this case,' the act not authorizing bail, the Judge .had, no; povver.to direct'the recognizance, and it is therefore void.

The demurrer .to the declaration was -well taken, and the judgment of the Court of-Common Pleas is affirmed, except as to judgment for- costs against the State, and,' as to that, reversed. • • ". ■• •  