(concurring).
Because of the importance of a question involved, I desire to state my reasons for concurring in the foregoing opinion. I have no doubt of the power of the Municipal Court to suspend the operation of its judgments in civil cases or to admit to bail in criminal actions, requiring and accepting a bail bond, a supersedeas, or a deposit of money. I think it is the right and duty of the Criminal Division, where appellant was convicted, to accept a bail bond or deposit in every case where the sentence imposed can be satisfied by payment of a fine. Nor do I doubt the power c-f our own court or its duty to release pending an appeal in any case if the Municipal Court should refuse to act or should require security in an amount we would regard as excessive.
This power is inherent in courts of record. It expresses a part of the framework upon which our statutory law rests: “The statutes of the United States have been framed upon the theory that a person accused of crime shall not, until he has been finally adjudged guilty in the court of last, resort, be absolutely compelled to undergo imprisonment or punishment, but may be admitted to bail, not only after arrest and before trial, but after conviction, and pending a writ of error.” 1
The right to bail is a part of our common law, inherited from the procedure universal in England centuries before the founding of our country. It was so recognized in the states prior to the enactment of statutes on the subject.2 It is a power which exists in the federal courts without authority of statute or rule.3
Perhaps a specific rule describing the manner and form of proceeding to secure a release on bail pending appeal should be adopted. However, the Criminal Division of the Municipal Court has continuously since its reorganization as of July 1, 1942, admitted to bail pending appeal, with our knowledge and tacit approval, with the result that this is the first case in which we have had to consider the legal background of its action, and in this case bail was neither asked nor refused.
Hudson v. Parker, 156 U.S. 277, 15 S.Ct. 450, 453, 39 L.Ed. 424.
Mozorosky v. Hurlburt, 106 Or. 274, 198 P. 556, 211 P. 893, 15 A.L.R. 1076; Ex parte Alexander, 59 Mo. 598, 21 Am. Rep. 393; Everly v. State, 10 Ind.App. 15, 37 N.E. 556; State v. McNab, 20 N.H. 160; State v. Satterwhite, 20 S.C. 536; Commonwealth v. Green, 12 Mass. 1.
Wright v. Henkel, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948; Hudson v. Parker, supra. The eighth amendment to the Constitution providing that “excessive bail shall not be required, nor excessive fines imposed” implies that the right to bail required no express guaranty. United States v. Brawner, D.C.W.D.Tenn., 7 F. 86.