Stack

Appellants 1 were indicted for violating § 3 of the Smith Act, 2 were allowed bail by District Judge Mathes in the sum of $50,000 each and, in default of furnishing such bail, were detained in the custody of appellee, United States Marshal James J. Boyle. Alleging that the bail required of them was excessive, appellants petitioned the District Court for writs of habeas corpus. Orders to show cause were issued, returns were filed, a hearing was had before District Judge Harrison, an order was entered denying the petitions, and appellants have appealed from the order. We affirm the order for the following reasons;

First. Habeas corpus is not a proper remedy for one charged, as appellants were and are, with an offense against the United States and detained, as appellants *57 were and are, in the custody of a United States marshal in default of furnishing hail alleged to be excessive. 3 The proper remedy in such a case is a motion for reduction of bail. 4 Therefore, regardless of whether the bail required of appellants was excessive, their petitions for writs of habeas corpus were properly denied.

Second. Judge Harrison did not find that the bail required of appellants was…

(dissenting).

I think habeas corpus is available to one detained in custody under bail claimed to be excessive. See 28 U.S.C.A. § 2241 (c) (1) and (3). The government concedes that it is, and the only cases bearing on the subject support that view. 1 See particularly, United States ex rel. Rubinstein v. Mulcahy, 2 Cir., 155 F.2d 1002 . If it were otherwise, no adequate remedy for the imposition of excessive bail would exist. Yet the right involved is one guaranteed by the Constitution, the Eighth Amendment of which provides that “Excessive bail shall not be required.” Of course a motion for reduction addressed to the court which has fixed the amount would be a proper course, but in this instance it would obviously be futile. Judge Mathes, who is in charge of the cases below and who fixed the bail, did so after a full hearing of all matters since urged in the habeas corpus proceedings now before us. One can hardly expect him to change his views on a second hearing of the same facts.

The petitioners are accused persons, only, who have not yet been tried on the charge against them, and they are entitled to the usual presumption of innocence appertaining to those of that status.…

(concurring).

I am in agreement with the views expressed by Judge Mathews. Despite the traditional and historic place in our Federal system of law which the Great Writ occupies, it is more than strange that one hundred and fifty-seven years elapsed (1789-1946) before a Federal appellate court reached the conclusion (and squarely held) that a person under indictment could resort to Habeas Corpus proceedings to secure reduction of bail fixed by a district court.

192 F.2d 56 STACK et al. v. BOYLE, United States Marshal. No. 13099. United States Court of Appeals Ninth Circuit. October 3, 1951. Ben Margolis, Los Angeles, Cal., Leo A. Sullivan, Oakland, Cal., Daniel G. Marshal, Los Angeles, Cal., Richard Gladstein, Charles R. Garry, Julius M. Keller and Benjamin Dreyfus, San Francisco, Cal., for appellants. Ernest A. Tolin, U. S. Atty., Los Angeles, Cal., for appellee. Before MATHEWS, HEALY and BONE, Circuit Judges. MATHEWS, Circuit Judge. 1 Appellants 1 were indicted for violating § 3 of the Smith Act, 2 were allowed bail by District Judge Mathes in the sum of $50,000 each and, in default of furnishing such bail, were detained in the custody of appellee, United States Marshal James J. Boyle. Alleging that the bail required of them was excessive, appellants petitioned the District Court for writs of habeas corpus. Orders to show cause were issued, returns were filed, a hearing was had before District Judge Harrison, an order was entered denying the petitions, and appellants have appealed from the order. We affirm the order for the following reasons: 2 First. Habeas corpus is not a proper remedy for one charged, as appellants were and…