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State v. Biehl

Decided: July 31, 1947.

THE STATE OF NEW JERSEY, RESPONDENT,
v.
GEORGE H. BIEHL AND RICHARD C. ANZER, APPELLANTS



On motion for certificate of reasonable doubt.

For the appellants, Maurice C. Brigadier.

For the state, Horace K. Roberson, Prosecutor of the Pleas, and Simon L. Fisch, Assistant Prosecutor.

Before Justice Heher, at chambers.

Heher

HEHER, J. Appellants were convicted in the Hudson Quarter Sessions of conspiracy to cheat and defraud the Republican State Committee, the Hudson County Republican Committee, and twenty-three named individuals and others to the grand jury unknown, by soliciting and receiving money contributions under the false pretense that they and their co-defendants, State Republican League and Hudson News Company, corporations organized by them as media for the perpetration of the fraud, so it is said, were authorized to solicit and receive and put such donations to the use of candidates of the Republican party for public office and the named party committees, and that the moneys so given would inure to the benefit of the Republican party and its state committee and candidates for public office. They have taken an appeal under chapter 187 of the laws of 1946 (Pamph. L., p. 775), effective February 1st last; and they now seek a certificate of reasonable doubt under section 6 of that statute. A like application made to the trial judge was denied.

The validity of the judgment is challenged upon these grounds: (1) error in a single passage of the charge; (2) error in several rulings on evidence; and (3) the denial of appellants' motion in arrest of judgment for failure (a) to "name" or "charge" as such in the indictment certain alleged known co-conspirators, and (b) to name the actual perpetrators of certain overt acts laid to appellants in the indictment.

At common law, bail is not a matter of right after conviction of crime; its allowance rests in sound judicial discretion. Release on bail is not a necessary corollary of the right of appellate review. The determinative considerations in the favorable exercise of this directionary authority are, ordinarily, good faith and grounds not frivolous but fairly debatable. This in recognition of the rule grounded in essential

justice that trial and conviction according to law should precede punishment for the crime. United States v. Motlow, 10 Fed. Rep. (2d) 657; United States v. Delaney, 8 Fed. Supp. 224. After conviction, the presumption of innocence no longer obtains; the judgment of conviction presumably is valid, and the convicted defendant carries the burden of establishing the right to bail pending the appeal.

Section 143 of the Criminal Procedure Act of 1898 (Comp. Stat. 1910, p. 1867) directed the admission of the defendant to bail in a case not capital pending the prosecution of a writ of error. But now, by direction of section 6 of the cited statute, as was also the case with R.S. 2:195-11, the convicted defendant in a non-capital case "shall not be admitted to bail" pending the appeal unless he shall receive from the trial court or a justice of the Supreme Court a certificate of the existence of "reasonable doubt as to the validity of the conviction," in which event the right to bail is absolute.

"Reasonable doubt" in the statutory sense is doubt founded in reason and the law. To meet that standard, the questions raised must relate to the substance and be fairly debatable, and thus reasonably give rise to uncertainty of judgment and mind as to the validity of the conviction. The obvious policy of the statute is to prevent undue delay in the execution of judgments in criminal cases, without exposing the defendant to the penal consequences of an erroneous judgment. Where there is not, in the view of the judge charged with the statutory duty, reasonable doubt as to the legal sufficiency of the judgment, the appeal does not operate as a supersedeas. The law demands the immediate execution of the judgment in such circumstance, for the interests of society are ill-served by delay in the execution of judgments in criminal cases not open to reasonable doubt as to their legal sufficiency. But where there is such doubt, the accused is entitled to bail until the validity of the judgment has been finally determined by the court of last resort, for it is of the essence of Anglo-Saxon justice that the innocent shall not suffer the imprisonment or punishment which rightly falls only upon the guilty. There is an obvious difference between the policy of this statute and the general rule obtaining elsewhere that the

convicted defendant is entitled to bail pending a review on error, unless the writ was taken in bad faith on frivolous grounds, merely for the purpose of delay. Compare United States v. Motlow, ...


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