(dissenting).
We are convinced that this Court is without authority to grant bail to appellant in view of Section 7-8 of the Code of 1952 which provides that “No bail shall be allowed when the defendant shall have been sentenced to death, life imprisonment or for a term exceeding ten years.” This prohibition is clear and unambiguous. It applies to this Court and all other Courts.
Similar statutes have been upheld in other States as constitutional in many decisions which are collected in annotations in 19 A. L. R. 807 and 77 A. L. R. 1235. In none of them was it contended, as here, that the writ of habeas corpus may be employed to override the statutes. In the recent case of In re Ferguson, 235 N. C. 121, 68 S. E. (2d) 792, 793, it was said: “After a defendant is convicted of a felony, there is no constitutional or statutory (in that State—interpolated) right to bail.” (Emphasis added.)
*250It is, of course, not illogical to restrict or deny the right to bail pending appeal from conviction. Before conviction, one charged with crime is clothed with a presumption of innocence; after conviction, the presumption of innocence is overthrown by verdict and judgment of guilt, upon which there arises a legal, as well as laical, presumption that the conviction is just, which presumption is not destroyed or abrobgated by appeal. Parker v. State Highway Department, S. C., 78 S. E. (2d) 382. In accord with this concept, our constitution of 1895, art. I, sec 20, requires the admittance to bail before conviction, with an exception which is now irrevelant; but contains no provision with respect to bail after conviction of crime. It thus Seems clear that there is no constitutional right which the above statute violates.
Notwithstanding the statutory prohibition of bail under the facts of this case, the court is urged to grant bail under section 4 of article V of the Constitution, which provides : “The Supreme Court shall have power to issue writs or orders of * * * habeas corpus and other original and remedial writs.” That the Chief Justice did in this case, which was for the purpose of inquiring into the legality of the detention of the applicant. It is found that he has been convicted of crime and sentenced to a term in excess of ten years, so that under the statute law, which has been quoted, he is not entitled to bail pending appeal from the conviction.
It is true that the writ of habeas corpus has come to be used as a convenient procedure before a court or judge to admit to bail one charged with crime, Evans v. Manning, 217 S. C. 10, 59 S. E. (2d) 341, but that is incidental to the main purpose of the writ which is to obtain release from illegal confinement. The following interesting quotation is from State v. Everett and Potter, 1838, Dub. 295: “At this day, one would hardly suppose that a question could arise on the subject of proceedings under the habeas corpus Act and yet there does seem to be a popular misapprehension in relation to them, indicating a belief that the habeas corpus Act is a sort of universal relief law — a summary general jail *251delivery. * * * The object, therefore, is to ascertain the cause of arrest and imprisonment, and to obtain bail if the offence be one for which bail can be allowed.” In the case at bar it would have been just as appropriate for the relator to have made a motion for bail.
It cannot consistently be overlooked that Sec. 15 of Article V of the Constitution vests also the Courts of Common pleas with jurisdiction, subject to appeal to the Supreme Court, to issue writs of habeas corpus, as do the statutes which create some of the County Courts; but it seems not to be contended that those courts are authorized to grant bail pending appeal of this and similar cases in which it is prohibited by the cited statute. What, too, of Sec. 17-354 of the Code of 1952, which empowers any two magistrates to issue the writ of habeas corpus ? May magistrates, thereunder, release appellant by the device of habeas corpus in defiance of the statute governing bail on appeal? They may, conformably to the contention which has been made in behalf of the applicant. Is not the contention, then, clearly fallacious? We think so.
It has been suggested that the General Assembly never intended to repeal Section 1032 of the 1942 Code, which was construed in State v. Farris, 51 S. C. 176, 28 S. E. 308, 370, as not prohibiting this Court from granting bail, and that the omission of this section from the 1952 Code was an error on the part of the publishers. This assertion is open to serious question. While doubtless it was the intention of the General Assembly by the 1944 amendment to Section 1031 of the 1942 Code, 43 St. at L. 1256, to liberalize the granting of bail in the sense of giving an appellant bail as a matter-of right in certain cases, rather than ip the discretion of the court, the amendment went further and provided “that no bail shall be allowed when the defendant shall have been sentenced to death, life imprisonment or for a term exceeding ten (10) years”. In view of the broad prohibition which has been quoted, Section 1032 of the 1942 Code became mere surplus-age and, we think, was impliedly repealed by the 1944 amendment. Be that as it may, however, Section 1032 of the *2521942 Code was lost when omitted from the 1952 Code. State v. Meares, 148 S. C. 118, 145 S. E. 695. It might be added that there was nothing in Section 1032 which empowered this Court to grant bail. Its effect was only to restrict the granting of bail in certain cases by either a Justice of the Supreme Court or a Circuit Judge. In State v. Farris, supra, it was held that this prohibition did not extend to this Court sitting as a whole. There was, therefore, left in the Supreme Court the power vested in the courts at common law to grant bail, as set out in State v. Satterwhite, 20 S. C. 536. This common law power has now been restricted by Section 7-8 of the 1952 Code, where the sentence is to death, life imprisonment or for more than ten years.
We repeat that we find it impossible to accept the view that although Section 7-8 of the 1952 Code prohibits, as apparently seems to be conceded, the Circuit and other courts from granting bail in certain cases, such prohibition does not extend to this Court. The fact that this Court is a court of last resort adds nothing to its power with reference to bail. If the common law power of circuit courts as to granting bail pending an appeal may be restricted by the General Assembly, where is the constitutional provision that denies the right of General Assembly to likewise restrict this Court? We find no such distinction made in the Constitution.
In our view the case is so plain that further, extended discussion is not warranted. The writ, having served its purpose, should be discharged; and the applicant remanded to custody pending his appeal.