Ex parte Smallman

The prisoners, having been convicted of the crime of grand larceny, and having taken an appeal to the Supreme Court from *36 the judgment of conviction, and from an order of the Municipal Criminal Court denying their motion for a new trial, make their application to be admitted to bail pending their appeal.

1. It is settled here that a person convicted of a felony of this grade is to be admitted to bail, or bail refused, as a matter of discretion merely. (Ex parte Voll, 41 Cal. 30 .) This is the admitted doctrine of that case, and if it is to be overruled it should be overruled by the Court. Besides, I am satisfied that the rule there announced is correct — is conformable to the Constitution, and it certainly follows the precise words of the statute.

2. What then is the nature of the discretion in the exercise of which this application is to be determined ? This inquiry I had occasion to answer upon another occasion, (Ex parte Marks, 49 Cal. 681 ) where I said that it was not an arbitrary discretion, but one measured by legal rules and by reference to the analogies of the law; and the conclusion which was reached in that case was that, except where circumstances of an…