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Gusick v. Boies

Supreme Court of Arizona

July 13, 1951

BOIES, Sheriff

Petitioner discharged without further bond.

George T. Wilson, of Phoenix, for petitioner.

Warren L. McCarthy, Co. Atty., and John J. Flynn, Dep. Co. Atty., Phoenix, for respondent.

Udall, Chief Justice. Phelps, De Concini and La Prade, JJ., concurring. Stanford, Justice (dissenting).


Udall, Chief Justice.

[72 Ariz. 310] Petitioner, Charles A. Gusick, invoked the jurisdiction of this court by filing an original application in habeas corpus. After a formal hearing on July 3, 1951, we discharged him from custody without the posting of further bond. In obedience to the requirements of article 6, section 2, Constitution of Arizona, the court now states the grounds for the action taken.

A brief summary of prior proceedings had against the petitioner is essential to an understanding of the question presented in the instant application. On June 26, 1951, in the habeas matter of Gusick v. Boies, 72 Ariz. 233, 233 P.2d 446, we unanimously held that bail exacted of petitioner in the total sum of $ 150,000 in two criminal cases then pending in the superior court of Maricopa county was excessive, and it was ordered reduced to the aggregate sum of $ 60,000 ($ 30,000 in each case) and the sheriff was directed to discharge the petitioner upon his giving bail in this sum. Such bail was furnished and the petitioner was released but before he could get out of the courthouse he was rearrested by the sheriff on eight other related charges filed by the county attorney. Bail aggregating $ 27,500 was required by the lower tribunals on these additional charges. This was furnished and petitioner, upon making such bail, was released from custody. The

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maximum penalty that could be imposed on petitioner if convicted of all the 31 counts embraced in the first two informations totaled 245 years. If the last eight charges are added thereto it can be seen that the potential punishment extends many times beyond the normal life of man.

Thereafter, on June 30, 1951, the county attorney caused to be filed in the justice court of the West Phoenix precinct another complaint charging the petitioner with the crime of sodomy, and bail was fixed by said court in the sum of $ 3500, in default of which the petitioner went back to jail believing that he would be faced with other similar charges regardless of whether he was able to furnish this bail. This petition was then filed and we issued a writ of habeas corpus returnable [72 Ariz. 311] forthwith. The sheriff produced petitioner, in obedience to the command of the writ, and a hearing was had in open court upon the oral return of the respondent sheriff who was represented by the county attorney. At the conclusion of the hearing a minute order was entered vacating and setting aside the order of the justice of the peace fixing bail in the sum of $ 3500 and discharging petitioner without the giving of further bail. (Justice Stanford dissented from the order discharging petitioner without further bail as he was of the opinion that additional bail in what he considered the reasonable sum of $ 2000 should be required rather than the bail of $ 3500 fixed by the magistrate.)

From a mere recitation of the steps taken by the county attorney subsequent to our decision as to what constituted reasonable bail in this matter, it appears obvious that the prosecuting officers -- the opinion of this court to the contrary notwithstanding -- have proceeded upon the theory that petitioner is so vile and the crimes charged so reprehensible and revolting that he should not be allowed his freedom on bail to mingle in society. The method pursued to keep the petitioner in jail was the practice of filing multitudinous charges and obtaining orders from the magistrates requiring additional bail, thus circumventing the constitution as well as flouting the clear intent of this court's previous decision. These tactics hardly comport with our concept of American justice. The guarantees provided by the federal and state constitutions apply equally to all and they cannot be denied to any one person without weakening the rights of all. Merely because a defendant may be considered by the prosecutor (and the magistrates charged with the duty of admitting to bail) as being unfit to mingle in society does not justify denying him the right to bail pending trial. Under the law, regardless of the character of the crime or what the facts may be, the accused at this time is clothed with the presumption of innocence.

As was pointed out in the first opinion, Gusick v. Boies, supra, bail is exacted for the sole purpose of securing the attendance in court of the defendant when required, and any bail fixed at more than is necessary for this purpose is deemed excessive within the meaning of the constitution. Furthermore, we stated therein that excessive bail is not to be required for the purpose of preventing the prisoner from being admitted to bail nor reasonable bail denied for the purpose of punishing a person charged with crime. A cursory examination of court records, both territorial and state, indicates that bonds aggregating $ 87,500 as required of petitioner in the instant case are far in excess of any bail ever exacted of any defendant for any offense in the 88 year annals of Arizona jurisprudence.

The law is well settled that the power to require bail is not to be so used [72 Ariz. 312] as to make it an instrument of oppression. Ex parte Castillo, 102 Tex.Cr.R. 52, 277 S.W. 126, cited in the Annotation appearing in 53 A.L.R. 399. Another factor that must be considered in fixing the amount of bail in a given case is the fact that the accused is under bond for appearance at trial in other cases. 6 Am.Jur., Bail and Recognizance, sec. 87. See also Annotation, Bail, Factors Fixing Amount, 72 A.L.R. 821, and cf. Green v. Petit,222 Ind. 467, 54 N.E.2d ...

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