I dissent and vote to affirm the order appealed from, even though in this particular case the record of the prisoner is such as to preclude any sentiment of sympathy for him. But however dark may he his record, he is, nevertheless, entitled to those rights with which the law endows all persons who have not been convicted of the crime with which they are charged.
In my opinion, the Special Term was justified, for reasons stated by Mr. Justice Dore, in entertaining the relator’s application for admission of the prisoner to bail. In my opinion, also, the Special Term was justified in fixing bail at $100,000, which, if the prisoner is able to furnish it, will assure his presence at the trial. The refusal of all bail to a defendant who has not been convicted of the crime for which he is indicted is a deprivation of. an essential right which, except under extraordinary circumstances, constitutes a violation of the constitutional prohibition against “ excessive bail.” (N. Y. State Const, art. I, §5.) The effect of such a decision is that if the defendant is innocent and is acquitted he has, nevertheless, been subjected to unjust imprisonment, even though he might have furnished bail sufficient to require his presence at the trial. It prejudices the defendant in the preparation of his case for trial and thus intensifies the disparity which ordinarily exists between a defendant’s ability to prepare for trial and the resources of the district attorney’s office.
The problem in each case must be to set the bail at a sum which, until conviction, will permit the defendant to remain at liberty and yet assure his presence at the trial. That problem the Special Term has solved with good judgment and discretion. The reversal by this court is tantamount to a determination that no amount of bail, however large, will accomplish that result. From that conclusion I must be permitted to dissent. The bail required by the Special Term will, if the prisoner can furnish it, assure his presence at the trial since, upon the facts disclosed, its forfeiture would result in the ruin not only of the prisoner but of the members of his family.
I accordingly dissent and vote to affirm the order appealed from.
Townley and Glennon, JJ., concur with Dore, J.; Martin, P. J., concurs in separate opinion; Untermyer, J., dissents, with opinion.
Order, so far as appealed from by the People of the State of New York, reversed, the writ of habeas corpus dismissed, and the prisoner remanded to the custody of the keeper of the City Prison. Appeal by relator dismissed. Settle order on notice.