(Specially Concurring). — I do not agree with the interpretation placed upon the criminal statutes by the Chief Justice, as the statutes exist in this state, as they are dealing with the right to bail, and thereby relate to section 22, article 2, state Constitution. Whatsoever effect may be otherwise given to legislation, such legislation cannot be given the effect of amending the Constitution of the state. As the question of bail in capital offenses before conviction, or at all, is not involved in this original proceeding, and only the question of the right to bail after conviction of a mis*526demeanor offense is involved, I express no opinion on the former question; that is, on the right to bail before or after conviction of a capital felony.
I do not concur in the decision in so far as it holds that paragraphs 1160, 1161 and 1162, Penal Code of Arizona of 1913, do not contemplate the granting of a certificate of reasonable grounds for appeal in misdemeanor eases. Paragraph 1160 is broad enough in language to, and expressly does, provide for the giving of such certificate in all cases other than capital comictions. Certainly a conviction in a misdemeanor charge is embraced within the expression “all other cases.” That the granting by the trial judge of the certificate of reasonable grounds for appeal has the effect in misdemeanor convictions of staying the execution of the judgment is, to my mind, no sufficient reason for holding that thé legislative intent is violated by granting the certificate and staying the execution of the judgment. On the other hand, if an appeal is perfected, and the execution of the judgment is not arrested, the appellant must suffer punishment in any event. A reversal in the appellate court is of no benefit to him in case his punishment is completed before the conviction has been reversed. If only a portion of the punishment has been inflicted at that time, can he be again tried, and a second punishment be imposed? That question is not involved in this cause. To a certainty, if the law of Arizona makes no provision for the stay of execution in misdemeanor convictions pending appeal, persons so convicted are deprived of the benefit of an appeal, and therefore are deprived of an appeal when convicted of misdemeanor offenses. Section 24, article 2, state Constitution, grants in all criminal prosecutions, “the right to appeal in all cases.”
The right to bail after conviction of a misdemeanor offense, pending an appeal, is another and different matter, and the matter this proceeding was commenced to determine. Whether bail in such case will be granted is left to the sound judicial discretion of the judge or court. Before a court or judge exercises such discretion, admitting the applicant to bail, the grounds moving the legal discretion should clearly appear from the facts and circumstances established and relied upon as the grounds of the applicant’s right to bail. The facts established at the trial by evidence may or may not be sufficient. The applicant may show the existence of *527facts unknown at the trial, or which came into existence since the trial, that are legally sufficient to the exercise of such discretion. The calls of humanity, from sickness, and many other causes, have been deemed legally sufficient to authorize the courts to admit a convicted defendant to bail pending appeal of his ease. I can see no reason to apply a harsher rule to a misdemeanor conviction than has been applied to a felony conviction.
I agree with the majority of the court that by the application for bail in this case the applicant has not shown grounds sufficient justifying this court in granting his prayer and admitting him to bail pending his appeal. For this reason alone, I concur in the order denying the application for admission to bail.
On the question of right to release on bail pending appeal under a general statute, see note in 37 L. R. A. (N. S.) 693.