THEOPHILUS ADDO-MILLS, Petitioner, v. NAPOLEON THORPE, et al.,

Respondents. PETITION FOR WRIT OF MANDAMUS TO THE MAGISTRATE COURT, CITY OF MONROVIA. Argued December 26, 1974. Decided January 24, 1975. 1. The object of bail in criminal cases is to secure the presence of the accused before the court for the purpose of public justice. 2. In order for bail in criminal cases not to be considered excessive, the reasonableness of the amount set must properly strike a balance between the need to secure the presence of the accused and his right to freedom from unnecessary restraint. 3. “An Act to amend the Penal Law to enlarge the definition of larceny to include issuance of worthless checks,” approved by the Legislature, February 18, 1967, is unconstitutional insofar as it relates to the required presentation of a cash bond equal to one and one-half times the face value of the dishonored instrument. The petitioner was arrested for issuing a check which was dishonored by the bank it was drawn on. He was charged with grand larceny under the “worthless check statute,” and he applied for bail, offering a bond which did not meet the requirements of the statute. He then applied for a writ of mandamus against the magistrates who had refused bail, but the Justice presiding in chambers referred the matter to the full bench, since a constitutional issue was involved. Counsel for the accused contended that the means of obtaining bail under the statute, which permitted only a cash bond, and the amount required, one and one-half times the amount of the worthless check, were too restrictive as to the method of obtaining bail and excessive as to amount of the bond required and, hence, the statute was unconstitutional. The Supreme Court agreed with the argument of petitioner and declared the “worthless check statute,” approved February 18, 1967, to be unconstitutional insofar as it related to the required presentation of a cash bond 27 28 LIBERIAN LAW REPORTS equal to one and one-half times the face value of the dishonored instrument. The petition was granted, requiring the respondent to approve a proper bond when presented. MacDonald Perry for petitioner. son for respondents. Joseph J. F. Ches- MR. JUSTICE HENRIES delivered the opinion of the Court. The petitioner allegedly issued a check in the amount of $13,000.00 in favor of Cedar Enterprises, of Monrovia. Upon presentation to the bank the check was dishonored. Petitioner was later arrested and charged with grand larceny, in accordance with the statute entitled “An Act to amend the Penal Law to enlarge the definition of larceny to include issuance of worthless checks,” approved February iS, 1967, which reads: “T. Any person who . . . (f) makes, draws, executes, utters or delivers to another any check, draft, or order upon any bank or depository for the payment of money when the person has no account or where funds are insufficient in the bank or depository to pay the check, draft or order upon presentation is guilty of larceny. . . . “6. In cases arising under Sub-section 1 (f) if the maker or drawer pays the face value of the check, draft or order, together with interest, charges, protest fees, within ten days after receiving written notice of dishonor, no arrest shall be made and no prosecution brought under this Section. “If the drawer or maker of the check does not pay the value of the check, draft or order within ten days as provided above, he shall be immediately arrested and released only on the presentation of a cash bond LIBERIAN LAW REPORTS 29 � equal to one and a half times the face value of the dishonored instrument. “The value of the bond shall be deposited with the Bureau of Internal Revenues and shall be withdrawn only after trial and upon warrant of the President of Liberia.” 1956 Code 27:297. After lingering in prison for some weeks, petitioner offered a bail bond with property valuation of $17,104.00. The respondents refused to approve the bond because the Act quoted above provides expressly for the tendering of a cash bond of one and one-half times the value of the dishonored check, or $19,500.00. The petitioner then applied for a writ of mandamus in the chambers of our distinguished colleague, Mr. Justice Robert G. W. Azango, contending that the act was unconstitutional and requesting that the respondents be ordered to approve a bond secured by real property. Because of the constitutional issue raised in the petition, the Justice forwarded the petition to the Court en banc. The statute is being attacked on two constitutional grounds: (r) that limiting bail to only a cash bond is a denial of bail in contravention of Article r, Section 20th, of the Constitution of Liberia, which states “that all prisoners shall be bailable by sufficient sureties, unless, for capital offences, when the proof is evident, or presumption great,” and (2) that the amount of bail of one and one-half times the value of the check is excessive and, hence, in violation of Article I, Section loth, of the Constitution, which provides that “excessive bail shall not be required, nor excessive fines imposed, nor excessive punishment inflicted.” We shall traverse these issues in reverse order; but let us first look at the history behind the Act. At the time of the enactment of the statute, there were nearly a halfmillion dollars of worthless checks circulating around the country, particularly in Monrovia, issued by persons who 30 LIBERIAN LAW REPORTS had no account with a bank or whose funds in the bank were insufficient to cover the amount of the checks. The banks began to complain, and the Legislature, in an attempt to curb such fraudulent transactions, passed into law the Act quoted above. This is the first instance in which the statute has come under attack, and counsel for respondents has also joined the petitioner with respect to the unconstitutionality of the statute. To support his contention that the amount of bail required by the Act is excessive, petitioner cited the Criminal Procedure Law. “The amount of bail in any criminal action in which restitution is required shall be equal to the amount of the maximum fine which may be imposed upon conviction of the offense charged. If the offense charged is punishable by imprisonment, the maximum number of months of imprisonment which may be imposed shall be multiplied by twenty-five dollars to determine the amount of bail. If the offense charged is punishable by both fine and imprisonment, the amount of bail shall be equal to the total of such amounts.” Rev. Code 2 : I 3.2. Petitioner contends that taking this statute and section 297 (3) of the Penal Law together, the maximum term of imprisonment for grand larceny is seven years or eighty-four months; therefore, the amount of bail should be seven years times three hundred dollars a year, or eighty-four months times twenty-five dollars a month, which equals $2,100.00. Following this argument to its logical conclusion, if bail for grand larceny exceeds $2,100.00, then it is excessive. But before deciding whether the amount of bail established by statute is excessive or not, let us first differentiate between civil and criminal bail. A fundamental distinction exists due to different purposes inherent in the two modes of procedure. According to 8 AM. JuR., 2d, Bail and Recognizance, � 3, LIBERIAN LAW REPORTS 31 “The object of bail in civil cases is either directly or indirectly to secure the payment of a debt or the performance of some other civil duty, whereas the object of bail in criminal cases is to secure the presence of the principal before the court for the purpose of public justice. Payment of the plaintiff’s claim by the sureties on the bail bond in a civil case discharges the obligation of the principal to his creditors as well as the obligation of the sureties. Although payment by the sureties of the face amount of the bail bond in a criminal case discharges their obligation, it does not discharge the obligation of the principal to appear in court, since bail or recognizance in a criminal case is not designed as a satisfaction for the offense, but as a means of compelling the accused to submit to trial and to punishment if he is convicted.” In other words, putting it simply, bail in civil cases is set at an amount sufficient to satisfy the plaintiff’s claim, while bail in criminal cases is set at an amount calculated to insure the presence of the accused at the trial. Having noted the distinction between the two types of bail, we must declare that it is our considered opinion that in order for bail not to be excessive, the amount must be reasonable; and the reasonableness of the amount is to be determined by properly striking a balance between the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint. Of course, the standard of reasonable bail should not be that flexible as to defeat the purpose of bail, that is, to secure the presence of the defendant, for in every case where the defendant lacks security for bail, there would be little likelihood of his feeling compelled to remain in the jurisdiction if little or nothing were at stake. We find that the amount of bail established in section 13.2 of the Criminal Procedure Law quoted supra, falls within our pale of reasonable amount. It is also our opinion that the amount set by the worthless check statute seems to have been formulated not 32 LIBERIAN LAW REPORTS as a reasonable assurance of the presence of the accused at the trial which is the object of criminal bail, but as an assurance that the accused would remain in jail, where petitioner in the instant case has been since September, 1974. As a matter of fact, if an accused must put up a cash bond of one and one-half times the value of the worthless check, he might as well pay the amount of the check and save himself the bother of tying up his funds or going through a trial, assuming that he is guilty. This is not to say that every defendant is entitled to bail in such amount as he can provide, but he is entitled to an opportunity for bail set at a reasonable amount, even though he might be capable of furnishing a larger amount. We, therefore, hold that bail should not be higher than that normally fixed for offenses carrying like penalties, in the absence of a showing of special circumstances requiring larger bail. See Stack v. Boyle, 343 U.S. I (1951) . We are unable to find the existence of such special circumstances in the worthless check statute, and, therefore, the amount of bail prescribed therein is excessive, for it cannot be squared with the purpose and constitutional standards for admission to bail. Bail set at a figure higher than an amount reasonably calculated to fulfill the purpose of assuring the presence of an accused, as is the case with the statute under review, is excessive under Article I, Section loth, of the Constitution. Turning to the question of limiting bail to only cash bonds, it should be mentioned that from as early as 1839, when Liberia was a Commonwealth, and up to the present, the laws of this Republic have unequivocally provided that a person arrested for a noncapital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence would lose its meaning. LIBERIAN LAW REPORTS 33 In 8 AM. JUR., 2d, Bail and Recognizance, � 4, it is stated that “the primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the state of the burden of keeping him, pending the trial, and at the same time to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.” We must ask whether this right to freedom before conviction or the purposes of criminal bail just mentioned can be conveniently achieved under the worthless check statute. We have already answered this question in part by holding that the amount of bail is excessive. The fact that the petitioner presented a bond secured by real property and was not released because the statute requires a cash bond, and, hence, he has been detained since last September, also answers this question more eloquently than words. The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty. Ex parte Milburn, [1835] USSC 14; 9 Pet. 704, 710 (1835). The traditional and most common method of giving such assurance is by bail bond or the deposit of a sum of money subject to forfeiture. Indeed, our Civil Procedure Law, Rev. Stat. :63.1, and our Criminal Procedure Law, Rev. Stat. 2:13.3, provide that a bond shall be secured by one or more of the following means: (a) cash to the value of the bond; (b) unencumbered real property on which taxes have been paid and which is held in fee by the person furnishing the bond; (c) valuables to the amount of the bond which are easily converted into cash; or (d) sureties who meet the requirements of section 63.2. Under the worthless check statute, only the first, and perhaps the most difficult, method is required to be used for obtaining bail. Again, we see no justifiable reason for limiting the means of obtaining bail to the presenta- 34 LIBERIAN LAW REPORTS tion of a cash bond. The purpose of bail is to serve the convenience of the accused, without interfering with or defeating the administration of justice. Therefore, in the exercise of his right to bail an accused should be given a fair opportunity to obtain bail. As a matter of fact, the very nature of bail requires sureties. It is a delivery or bailment of a person to his sureties upon their giving, together with himself, sufficient security for his appearance; and he is supposed to continue in their friendly custody instead of going to jail. This is substantiated by the constitutional requirement in Article I, Section loth, that prisoners be bailable by “sufficient sureties.” According to 8 AM. JUR., 2d, Bail and Recognizance, � 82, “constitutional or statutory provisions usually specify sufficient sureties as bail. Sureties should be persons of sufficient financial ability and of sufficient vigilance to secure the appearance and prevent the absconding of the accused. A court has broad power, inherent in the very nature of its judicial function, to reject a bond when it believes a surety to be insufficient or otherwise disqualified.” It is our opinion that the purpose of the constitutional provisions of Article I, Sections loth and loth, is to prevent the practical denial of bail either by fixing the amount so unreasonably high that it cannot be given, or by arbitrarily restricting the means by which bail can be given. The statute under consideration does not achieve this purpose, hence, we must declare it to be unconstitutional. It should be remembered that the practice of admission to bail, as it has evolved over the years since our national existence and in Anglo-American law, is not a device for keeping persons in jail upon mere accusations until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Actual admission to bail reinforces the basic principle of freedom, inherent in our democratic system, that an accused LIBERIAN LAW REPORTS 35 is presumed to be innocent until proven guilty by evidence beyond a reasonable doubt. It also reconciles sound administration of justice with the right of the accused to be free from harassment and confinement, unhampered in the preparation of his defense and not subject to punishment prior to conviction. It is clear from the wording of the worthless check statute, with respect to the amount of bail and the method of posting bail, that the statute is not of the usual grand larceny variety nor does it follow the usual criminal procedure law. It is not denied that bail has been fixed in a sum much higher than that usually imposed for offenses with like penalties, or that the security for the bond is unduly restrictive. Why such a departure from the norm is not clear. What is clear is that this law does impose peculiar disabilities or burdensome conditions in the exercise of the accused’s constitutional right to bail. This, in our opinion, is not in consonance with the Constitution and, therefore, the statute must fall. Of necessity, laws passed to promote a given object must be controlled or modified by the circumstances surrounding the object, and must be framed to meet the exigencies standing in the way of the end to be reached and, therefore, we do not question the right of the Legislature to enact such laws. However, it is our opinion that such laws must not be arbitrary, but must be founded upon some natural intrinsic or constitutional distinction. Before concluding this opinion, we must say that since this Court alone can declare an act unconstitutional, the respondents had no choice but to deny bail where it did not meet the requirements of the applicable statute. In view of the foregoing, we must hold that the statute entitled “An Act to amend the Penal Law to enlarge the definition of larceny to include issuance of worthless checks,” approved February 18, 1967, is unconstitutional insofar as it relates to “the presentation of a cash bond equal to one and a half times the face value of the dis- 36 LIBERIAN LAW REPORTS honored instrument.” The peremptory writ is hereby issued and the respondents are required to approve a proper bond in accord with this opinion, whenever it is presented by the petitioner. And it is so ordered. Petition granted.