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10 F.(20) 657 UNITED STATES V. MOTLOW et al. bail, as suggested by the Conference of Senior

Circuit Judges held in June, 1925. But the (Before Mr. Justice Butler, of the Supreme proper exercise of judicial discretion is never

Court, Sitting as Circuit Justice in the Circuit arbitrary, fanciful, or capricious; it is deliberCourt of Appeals for the Seventh Circuit. ate, and governed by reason and the law apFebruary, 1926.)

plicable to the cases under consideration. 1. Bail 47—Where writ has been issued and 6. Bail em44.

citation served in criminal case, Circuit Jus. Applicants for bail pending review of contice, who is member of Circuit Court of Ap. viction are not required to show that they are peals reviewing case, is authorized to fix and entitled to a reversal. allow bail.

7. Bail Ow49—Refusal of bail, after conviction Where the writ has been issued and citation

by trial judge and two circult judges, should has been served in a criminal case, the Circuit

be considered but not allowed to control on Justice, who is a member of the Circuit Court

subsequent application. of Appeals to which the case is taken for review, is authorized to fix and allow bail.

Refusal of bail, after conviction by trial

judge and by two circuit judges, on further ap2. Bail Om 47.

plication should be thoughtfully considered but Power to grant bail is attended by duty to

not allowed to control a just exercise of dishear applications therefor.

cretion in determining application. 3. Bail Ew52 - Eighth Amendment, providing One Motlow and thirty-eight others were

that excessive bail shall not be required, safe. guards right to bail, at least before trial, and charged with conspiracy to violate the Na

After conviction, is intended to prevent dénial of bail by fixing tional Prohibition Act. amount thereof unreasonably high.

Harry Levin and nine others petition for The provision of the Eighth Amendment bail pending review of said conviction, that “excessive bail shall not be required" safe. Writs of error to take the case to the Cirguards the right to give bail, at least before cuit Court of Appeals for the Seventh Cirtrial. The purpose is to prevent the practical cuit have been allowed. Bail granted. denial of bail, by fixing the amount so unreasonably high that it cannot be given.

T. J. Rowe, Henry Rowe, William Baer, 4. Bail em44—Persons convicted of conspiracy and Charles A. Houts, all of St. Louis, Mo.,

to violate National Prohibition Act held en- Thomas Pogue, of Cincinnati, Ohio, Moses titled to bail pending review (Circuit Court B. Lairy, of Indianapolis, Ind., A. Julius of Appeals rule 32; National Prohibition Act Frieberg, of Cincinnati

, Ohio, and Levi [Comp. St. Ann. Supp. 1923, 8 10138/4 et seq.]; Judicial Code, $$ 119–122 (Comp. st. Cooke, of Washington, D. C., for petition$81111-1114); Rev. St. 88 1007, 1014, 1015, 1016 [Comp. St. 88 1666, 1674, 1679, 1680]: Albert Ward, U. S. Atty., of Peru, Ind., Const. Amend. 8; Act Feb. 13, 1925, § 8, subd. and Howard T. Jones and Mahlon D. Kie"C" [Comp. St. Supp. 1925, § 1126b]; Or. dinance July 13, 1787, art. 2 (Comp. St. 1918, fer, Sp. Asst. Attys. Gen., for the United p. 6]).

States. Persons convicted of conspiracy to violate National Prohibition Act (Comp. St. Ann. Supp. BUTLER, Circuit Justice. In the matter 1923, $ 1013814 et seq.). who petitioned for of the petitions of Harry Levin and nine writs of error on very day that sentences were imposed. though, under Act Feb. 13, 1925, § 8, other defendants to be admitted to bail. subd. "c" (Comp. St. Supp. 1925, § 1126b), they

February 3, 1926, there was presented to had three months therefor, and in application me, as Circuit Justice of the Seventh circuit, for bail stated that their assignments of error

the petitions for Harry Levin, Morris Mulwere made in good faith on assurance of counsel that they were well founded, held entitled to

tin, Michael Whalen, Daniel O'Neil, Robert bail pending determination of Circuit Court E. Walker, John Connors, Anthony Foley, of Appeals, in view of Circuit Court of Ap. Edward J. O'Hare, George R. Landon, and peals rule 32, Judicial Code, $8 119–122 William Lucking, to be admitted to bạil. (Comp. St. $ 1111-1114), Rev. St. 1007: Their respective attorneys, T. J. Rowe, Esq., 1014, 1015, 1016 (Comp. St. 88 1666, 1674, 1679, 1980), Const. Amend, 8, and Ordinance Henry Rowe, Esq., William Baer, Esq., July 13, 1787, art. 2 (Comp. St. 1918, p. 6). Charles A. Houts, Esq., Thomas Pogue, Esq., 5. Bail 42—Appeals may be discouraged by Moses B. Lairy, Esq., A. Julius Frieberg, right exercise of discretion as to bail, and Esq., and Levi Cooke, Esq., appeared in proper exercise of discretion is never arbi. support of the petition. Notice having been trary, fanciful, or capricious, but is governed given, Albert Ward, Esq., United States atby reason and law applicable to cases under torney for the district of Indiana, and Howconsideration,

Judges may do much to discourage appeals ard T. Jones, and Mahlon D. Kiefer, Esq., taken on frivolous grounds, merely for delay, special assistants to the Attorney General, by appropriate exercise of their discretion with appeared in opposition. in established lines in granting or withholding October 31, 1925, in the United States

10 F.(20)-42

ers.

.....2 years..

2 years... Michael Whalen............. 2 years...

6,000 Daniel O'Neil..

15 months.....

500
15 months...
15 months...

1,000
15 months.......... 1,500

500

District Court for the District of Indiana, that, as a matter of law, the evidence was an indictment was returned against thirty- not sufficient to justify or sustain a verdict nine persons, including the petitioners. It against them. Petitioners represent that

. charged that the defendants conspired with they are proceeding with diligence to secure each other and with divers other persons, an early review of the case, and they say whose names were unknown, to violate the that they did not delay the trial; that, being National Prohibition Act (Comp. St. Ann. on bail, they attended the trial as required, Supp. 1923, § 101381/4 et seq.) and particu- and made no attempt to escape or to evade larly section 3 of title 2 thereof (section any order of the court after conviction; that 101381/2aa, Comp. St. Ann. Supp. 1923). each of them has a fixed place of abode, and Overt acts were alleged to have been com- has been engaged in business in St. Louis; mitted in Ohio, Indiana, and Missouri. On that none of them has ever been a fugitive the return of the indictment, petitioners ap- from justice; and that each is able to give peared and were admitted to bail. The trial a bond in such reasonable amount as may be commenced on December 14, 1925, and end- required. They aver, on information and ed on the 18th day of that month. Petition- belief, that it will require approximately a ers were found guilty. After the verdict, year to obtain decision in the Circuit Court they were allowed to remain at large on bail of Appeals, and that, if bail is denied, the until December 30, 1925. On that day, they petitioner O'Hare, sentenced for one year made motions for a new trial and in arrest and a day--deducting the allowance for good of judgment. The motions were denied, and behavior—will have served his term before they were sentenced to the penitentiary at his writ of error can be determined, that the Leavenworth, and to pay fines, as follows: petitioners under sentence of 15 months will Namo

Terms of Imprisonment. Fine. have served substantially all their time, and Harry Levin...

$5,000 that those under sentence of 2 years will Morris Multin...

6,000 have served two-thirds of their sentences be

fore such determination. Robert E. Walker..

1,000 At the hearing, February 3, on this apJohn Connors......

plication, oral objections were made on beAnthony Foley..... Edward J. O'Hare... 1 year and 1 day.. half of the United States; and the United George R. Landon........... 1 year and 1 day.. 2,500 States attorney stated that, after denial of William Lucking............ 1 year and 1 day.. 2,500 bail by the District Court, the petitioners on

On the same day, in order to take the case the next day, December 31, 1925, applied to to the Circuit Court of Appeals for review, the Circuit Court of Appeals to be admitted petitioners filed assignments of errors and to bail, and that the application was denied. petitions for writs of error. The writs were Time not to exceed 10 days was granted to allowed, and citations were issued and enable him to present a copy of the record served. Thereupon, petitioners applied to and papers in that court, together with a the District Court for bail pending a deter- transcript of the minutes, if any were takmination of the case in the Circuit Court of en, of the hearing there had. Appeals. The application was denied. In On February 13, the United States attorexecution of the judgment, petitioners were neys presented written objections, in subcommitted to the penitentiary, and, pursu- stance, as follows: (1) The granting of bail ant to the sentences imposed, they are now is addressed to the discretion of the trial there imprisoned.

judge; (2) the application for bail was dePetitioners insist that, by the proceedings nied by the trial judge and later by two after the verdict, the judgments were super- Circuit Judges; (3) the petitioners have seded, and that, as a matter of legal right, not shown that the District Judge or Circuit each of them was entitled to an order of su- Judges abused their discretion; (4) in the persedeas and also entitled to be admitted to absence of a transcript or bill of exceptions, bail. They state that their assignments of the discretion of the District Judge and errors are made in good faith and upon as- Circuit Judges cannot be reviewed; (5) aftsurance of counsel that they are well found- er conviction, every presumption is against ed in law. Applicants challenge the juris- the defendants, and decisions of the District diction of the trial court, the competency of Court upon discretionary matters should not certain witnesses called by the government, be interfered with; (6) the enforcement of the admissibility of some evidence intro- the criminal law demands that bail pending duced against them, and a part of the court's appeal should be denied, where it is apparcharge to the jury; and, in behalf of Lan- ent to the trial court that conviction is propdon and Lucking, it is earnestly claimed er, and appeal is prosecuted, not with the 10 F.(20) 657 hope of new trial, but on frivolous grounds and also In re Claasen, 11 S. Ct. 735, 140 merely for delay. The United States attor- U. S. 200, 208, 35 L. Ed. 409. neys also presented a copy of a letter of [2] The power to grant bail is attended February 6, 1926, of the United States at- by the duty to hear applications therefor. torney, Mr. Ward, to Circuit Judges An- [3] As to supersedeas and bail after senderson and Page, and their answer, dated tence. It is the purpose of the law-and February 9, 1926. It appears that no ap- many statutes, federal and state, have been plication was ever n.ade to the Circuit Court enacted—to safeguard litigants so far as of Appeals, but, on the day after sentence possible against erroneous judgments. . Rewas imposed, some of the defendants--and view in appellate courts is favored in all while it does not clearly appear, it may be cases where the grounds on which it is assumed all the petitioners-did apply for claimed are assigned in good faith on advice bail to Circuit Judges Page and Anderson. of counsel that in law they are valid and The applications were denied. No papers well taken; and parties properly seeking rewere filed, no record was made, and no min- view are not to be burdened by avoidable utes of what was said at the hearing were expense, loss, sacrifice or punishment. In taken. However, the letter of the United cases of sentence to the penitentiary or to States attorney to the Circuit Judges and death, an order of supersedeas may be obtheir answer gives an account of the hear- tained as a matter of right and without giving.

ing security. R. S. § 1007 (Comp. St. & [1] Where a writ of error has been issued 1666); In re Claasen, supra, 11 S. Ct. 735, and citation has been served in a criminal 140 U. S. 208; Hudson v. Parker, 15 S. case, the Circuit Justice is authorized to fix Ct. 450, 156 U. S. 277, 283, 39 L. Ed. and allow bail. See sections 119, 120, 121, 424; McKnight v. United States, 113 F. Judicial Code (Comp. St. $$ 1111, 1112, 451, 452, 51 C. C. A. 285. The trial court 1113). In the exercise of its power to es- allowed petitioners' writs of error and istablish rules and regulations for the conduct sued citations. It was not for that court, of the business of the court (section 122, and it certainly did not assume, to pass upJudicial Code (Comp. St. § 1114]), the on the grounds on which review of the trial Circuit Court of Appeals of the Seventh and of its judgment is sought. Circuit, by its rule 32, expressly declares: [4] As to bail. The Eighth Amendment

“1. Writs of error from this court to re- provides that "excessive bail shall not be review criminal cases tried in any District or quired.” This implies, and therefore safeCircuit Court of the United States within guards, the right to give bail at least before this circuit, may be allowed in term time or trial. The purpose is to prevent the pracin vacation by the Circuit Justice assigned tical denial of bail by fixing the amount so to this circuit, or by any of the Circuit Judg- unreasonably high that it cannot be given. es within the circuit, or by any District The provision forbidding excessive bail Judge within bis district, and the proper se

would be futile if magistrates were left free curity be taken, and the citation signed by to deny bail. The Ordinance of 1787 (U. him, and he may also grant a supersedeas S. Comp. St. 1918, p. 6) declares that: and stay of execution or proceedings, pend- “All persons shall be bailable, unless for ing the determination of such writ of error. capital offenses, where the proof shall be evi

“2. Where such writ of error is allowed dent, or the presumption great." Article 2. in the criminal cases the District Court be- Chief Justice Mason of the Supreme fore which the accused was tried, or the Court of Iowa, in Hight v. United States, District Judge of the district wherein he Morris 407, 409, 43 Am. Dec. 111, 112, said: was tried, within his district, or the Circuit "This is no new provision, but is in exJustice assigned to this circuit, or any of press terms incorporated into the constituthe Circuit Judges within the circuit, shall tions of at least one-half of the states of the have the power, after the citation has been Union and is the rule of action in all the rest. duly served, to admit the accused to bail and It is merely declaratory of the common law to fix the amount of such bail."

of the United States.” See Re Thomas, 93 P. The First, Second, Third, Fifth, Sixth, 980, 20 Okl. 167, 39 L. R. A. (N. S.) 752, and Eighth circuits have similar rules. See, and note; page 65, Index Digest of State respectively, 150 F. p. xlvi; 285 F. p. xvi; Constitutions (prepared for New York Con224 F. p. X; 159 F. p. lxxxv; 202 F. p. stitutional Convention Commission, 1915). viii; 188 F. p. xxii. These rules, in sub- Section 1015 of the Revised Statutes stance, follow rule 36 promulgated by the (Comp. St. § 1679) provides : Supreme Court in 1891. See 139 U. S. 701, “Bail shall be admitted upon all arrests

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Daniel O'Neil......

......... 2 years..........

...2 years.............
... 2 years.............

15 months..
......... 15 months..
......15 months..

15 months..

500

5.00

District Court for the District of Indiana, that, as a matter of law, the evidence was an indictment was returned against thirty- not sufficient to justify or sustain a verdict nine persons, including the petitioners. It against them. Petitioners represent that charged that the defendants conspired with they are proceeding with diligence to secure each other and with divers other persons, an early review of the case, and they say whose names were unknown, to violate the that they did not delay the trial; that, being National Prohibition Act (Comp. St. Ann. on bail, they attended the trial as required, Supp. 1923, § 1013814 et seq.) and particu- and made no attempt to escape or to evade larly section 3 of title 2 thereof (section any order of the court after conviction; that 101381/2aa, Comp. St. Ann. Supp. 1923). each of them has a fixed place of abode, and Overt acts were alleged to have been com- has been engaged in business in St. Louis; mitted in Ohio, Indiana, and Missouri. On that none of them has ever been a fugitive the return of the indictment, petitioners ap- from justice; and that each is able to give peared and were admitted to bail. The trial a bond in such reasonable amount as may be commenced on December 14, 1925, and end- required. They aver, on information and ed on the 18th day of that month. Petition- belief, that it will require approximately a ers were found guilty. After the verdict, year to obtain decision in the Circuit Court they were allowed to remain at large on bail of Appeals, and that, if bail is denied, the until December 30, 1925. On that day, they petitioner O'Hare, sentenced for one year made motions for a new trial and in arrest and a day—deducting the allowance for good of judgment. The motions were denied, and behavior—will have served his term before they were sentenced to the penitentiary at his writ of error can be determined, that the Leavenworth, and to pay fines, as follows: petitioners under sentence of 15 months will Namo Terms of Imprisonment. Fine.

have served substantially all their time, and Harry Levin.......

$5,000 that those under sentence of 2 years will Morris Multin...

6,000 have served two-thirds of their sentences beMichael Whalen...

6,000

fore such determination. Robert E. Walker.

1,000 At the hearing, February 3, on this apJohn Connors.

1,000 Anthony Foley...

plication, oral objections were made on be

1,500 Edward J. O'Hare........ 1 year and 1 day.. half of the United States; and the United George R. Landon........... 1 year and 1 day.. 2,500 States attorney stated that, after denial of William Lucking........... 1 year and 1 day.. 2,500 bail by the District Court, the petitioners on

On the same day, in order to take the case the next day, December 31, 1925, applied to to the Circuit Court of Appeals for review, the Circuit Court of Appeals to be admitted petitioners filed assignments of errors and to bail, and that the application was denied. petitions for writs of error. The writs were Time not to exceed 10 days was granted to allowed, and citations were issued and enable him to present a copy of the record served. Thereupon, petitioners applied to and papers in that court, together with a the District Court for bail pending a deter- transcript of the minutes, if any were takmination of the case in the Circuit Court of en, of the hearing there had. Appeals. The application was denied. In On February 13, the United States attorexecution of the judgment, petitioners were neys presented written objections, in subcommitted to the penitentiary, and, pursu- stance, as follows: (1) The granting of bail ant to the sentences imposed, they are now is addressed to the discretion of the trial there imprisoned.

judge; (2) the application for bail was dePetitioners insist that, by the proceedings nied by the trial judge and later by two after the verdict, the judgments were super- Circuit Judges; (3) the petitioners have

, seded, and that, as a matter of legal right, not shown that the District Judge or Circuit each of them was entitled to an order of su- Judges abused their discretion; (4) in the persedeas and also entitled to be admitted to absence of a transcript or bill of exceptions, bail. They state that their assignments of the discretion of the District Judge and errors are made in good faith and upon as- Circuit Judges cannot be reviewed; (5) aftsurance of counsel that they are well found- er conviction, every presumption is against ed in law. Applicants challenge the juris- the defendants, and decisions of the District diction of the trial court, the competency of Court upon discretionary matters should not certain witnesses called by the government, be interfered with; (6) the enforcement of the admissibility of some evidence intro- the criminal law demands that bail pending duced against them, and a part of the court's appeal should be denied, where it is apparcharge to the jury; and, in behalf of Lan- ent to the trial court that conviction is propdon and Lucking, it is earnestly claimed er, and appeal is prosecuted, not with the 10 F.(20) 657 hope of new trial, but on frivolous grounds and also In re Claasen, 11 S. Ct. 735, 140 merely for delay. The United States attor- U. S. 200, 208, 35 L. Ed. 409. neys also presented a copy of a letter of [2] The power to grant bail is attended February 6, 1926, of the United States at- by the duty to hear applications therefor. torney, Mr. Ward, to Circuit Judges An- [3] As to supersedeas and bail after senderson and Page, and their answer, dated tence. It is the purpose of the law-and February 9, 1926. It appears that no ap- many statutes, federal and state, have been plication was ever n.ade to the Circuit Court enacted—to safeguard litigants so far as of Appeals, but, on the day after sentence possible against erroneous judgments. . Rewas imposed, some of the defendants—and view in appellate courts is favored in all while it does not clearly appear, it may be cases where the grounds on which it is assumed all the petitioners-did apply for claimed are assigned in good faith on advice bail to Circuit Judges Page and Anderson. of counsel that in law they are valid and The applications were denied. No papers well taken; and parties properly seeking rewere filed, no record was made, and no min- view are not to be burdened by avoidable utes of what was said at the hearing were expense, loss, sacrifice or punishment. In taken. However, the letter of the United cases of sentence to the penitentiary or to States attorney to the Circuit Judges and death, an order of supersedeas may be obtheir answer gives an account of the hear- tained as a matter of right and without giving.

ing security. R. S. § 1007 (Comp. St. § [1] Where a writ of error has been issued 1666); In re Claasen, supra, 11 S. Ct. 735, and citation has been served in a criminal 140 U. S. 208; Hudson v. Parker, 15 S. case, the Circuit Justice is authorized to fix Ct. 450, 156 U. S. 277, 283, 39 L. Ed. and allow bail. See sections 119, 120, 121, 424; McKnight v. United States, 113 F. Judicial Code (Comp. St. $$ 1111, 1112, 451, 452, 51 C. C. A. 285. The trial court 1113). In the exercise of its power to es- allowed petitioners' writs of error and istablish rules and regulations for the conduct sued citations. It was not for that court, of the business of the court (section 122, and it certainly did not assume, to pass upJudicial Code [Comp. St. § 1114]), the on the grounds on which review of the trial Circuit Court of Appeals of the Seventh and of its judgment is sought. Circuit, by its rule 32, expressly declares : [4] As to bail. The Eighth Amendment

"1. Writs of error from this court to re- provides that “excessive bail shall not be review criminal cases tried in any District or quired.” This implies, and therefore safeCircuit Court of the United States within guards, the right to give bail at least before this circuit, may be allowed in term time or trial. The purpose is to prevent the pracin vacation by the Circuit Justice assigned tical denial of bail by fixing the amount so to this circuit, or by any of the Circuit Judg- unreasonably high that it cannot be given. es within the circuit, or by any District The provision forbidding excessive bail Judge within bis district, and the proper se- would be futile if magistrates were left free curity be taken, and the citation signed by to deny bail. The Ordinance of 1787 (U. him, and he may also grant a supersedeas S. Comp. St. 1918, p. 6) declares that: and stay of execution or proceedings, pend- "All persons shall be bailable, unless for ing the determination of such writ of error. capital offenses, where the proof shall be evi

“2. Where such writ of error is allowed dent, or the presumption great.” Article 2. in the criminal cases the District Court be- Chief Justice Mason of the Supreme fore which the accused was tried, or the Court of Iowa, in Hight v. United States, District Judge of the district wherein he Morris 407, 409, 43 Am. Dec. 111, 112, said: was tried, within his district, or the Circuit “This is no new provision, but is in exJustice assigned to this circuit, or any of press terms incorporated into the constituthe Circuit Judges within the circuit, shall tions of at least one-half of the states of the have the power, after the citation has been Union and is the rule of action in all the rest. duly served, to admit the accused to bail and It is merely declaratory of the common law to fix the amount of such bail."

of the United States.” See Re Thomas, 93 P. The First, Second, Third, Fifth, Sixth, 980, 20 Okl. 167, 39 L. R. A. (N. S.) 752, and Eighth circuits have similar rules. See, and note; page 65, Index Digest of State respectively, 150 F. p. xlvi; 285 F. p. xvi; Constitutions (prepared for New York Con224 F. p. x; 159 F. p. lxxxv; 202 F. p. stitutional Convention Commission, 1915). viii; 188 F. p. xxii. These rules, in sub- Section 1015 of the Revised Statutes stance, follow rule 36 promulgated by the (Comp. St. $ 1679) provides : Supreme Court in 1891. See 139 U. S. 701, "Bail shall be admitted upon all arrests

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