Order in accordance with opinion.
George T. Wilson, of Phoenix, for petitioner.
Warren L. McCarthy, County Atty., and John J. Flynn, Deputy County Atty., Phoenix, for respondent.
Udall, C. J., and Stanford, Phelps, De Concini and La Prade, JJ., concur.
[72 Ariz. 235] This is an original proceeding in habeas corpus instituted by Charles A. Gusick, petitioner, for the purpose of procuring a reduction in the amount of bail fixed by the committing magistrate of East Phoenix precinct on holding petitioner to answer in two criminal causes now pending before the superior court of Maricopa county, which refused to reduce the amount of bail upon petitioner's application.
Respondent L. C. Boies, sheriff of Maricopa county, attached to his response a motion to dismiss the writ because of the failure of petitioner to present to this court the complete record of the proceedings had before the superior court and the committing magistrate. In our opinion this motion is without merit and is hereby denied for the reason that it was admitted on argument that no evidence bearing on the bail question was taken in either of the lower tribunals. Before this court is the entire record, including the superior court's order denying petitioner's application for reduction of bail, hence we have before us everything necessary to determine whether the trial court abused its discretion.
Petitioner alleges that the committing magistrate of the East Phoenix precinct, after a preliminary hearing had been waived, held him to answer to the superior court for the crimes of sodomy and fellatio. Bail was fixed in each case in the sum of $ 75,000. Thereafter two separate informations were filed in the superior court charging petitioner with said offenses, and upon arraignment -- where a plea of not guilty was entered -- petitioner's application for reduction of bail was denied by the court. [72 Ariz. 236] Petitioner further alleges that he is now confined in the county jail and, due to his inability to give bail in the aggregate sum of $ 150,000, is unlawfully restrained of his liberty by the sheriff of Maricopa county while awaiting trial. Petitioner also alleges that his failure to furnish such bail is because of his financial inability to do so and contends that the excessive amount of bail so required of him is violative of his rights in that it amounts in effect to a denial of his constitutional right to be admitted to bail.
The return of the sheriff is to the effect that he has the custody of the petitioner pursuant to the orders of the magistrate fixing bail and petitioner's failure to execute bail bonds in the sums specified.
While there are no reported decisions of this court on the point, "It is a general rule that habeas corpus lies to procure the discharge upon bail in a proper amount of one who is held under excessive bail, provided, in some jurisdictions, that application has first been made to the lower court for reduction of the amount of bail. * * *" 25 Am.Jur., Habeas Corpus, Sec. 88; see also 39 C.J.S., Habeas Corpus, § 34(b). The Constitution of Arizona states in Article 2, Section 22: "All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great", and in Article 2, Section 15, of the Arizona Constitution, it is provided: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." In keeping with this basic law Section 44-411, A.C.A.1939 (Rules Cr.Proc., Sec. 70), provides: "All persons in custody for the commission of an offense not capital shall, before conviction, be entitled as of right to be admitted to bail."
While there is a split in the authorities, Arizona is, we believe, properly committed to the view that in fixing the amount of bail the innocence of the accused is presumed, In re Haigler,15 Ariz. 150, 137 P. 423. Contra: Ex parte Ryan, 44 Cal. 555; Ex parte McWhorter, 48 Okl.Cr. ...