
113 U.S. 143 (1885)
CLAWSON
v.
UNITED STATES.
Supreme Court of United States.
Argued January 5, 1885.
Decided January 19, 1885.
APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH.
*144 *145 Mr. Wayne McVeigh and Mr. F.S. Richards, for appellant. &mdash.
Mr. Solicitor-General for appellee.
*146 MR. JUSTICE HARLAN delivered the opinion of the court. He recited the facts as above stated, and continued:
By the laws of Utah regulating the mode of procedure in criminal cases, it is provided, among other things, that the defendant *147 in a criminal action may appeal to the Supreme Court of the Territory, from any order made after judgment, affecting his substantial rights. Laws of Utah, 1878, Title VIII., ch. 1, § 360. To that class belonged the order made by the court of original jurisdiction refusing bail, and remanding the accused to the custody of the marshal. But no appeal was taken from that order. And as the accused sued out an original writ of habeas corpus from the Supreme Court of the Territory, we cannot, upon the present appeal, consider whether the court of original jurisdiction properly interpreted the local statutes in holding that the accused "ought not to be admitted to bail, after conviction and sentence, unless some extraordinary reason therefor is shown." There is nothing before us for review except the order of the Supreme Court of the Territory, which discloses nothing more than the denial of the application to it for bail, and the remanding of the prisoner to the custody of the marshal. That order, in connection with the petition for habeas corpus  assuming all of the allegations of fact contained in it to be true  only raises the question, whether, under the laws of the Territory, the accused, upon perfecting his appeal and filing the required certificate of probable cause, was entitled, as matter of right, and without further showing, to be let to bail, pending his appeal from the judgment of conviction. Upon the part of the government it is insisted that the court below had, by the statute, a discretion in the premises which, upon appeal, will not be reviewed.
By the laws of the Territory it is provided that "an appeal to the Supreme Court from a judgment of conviction stays the execution of the judgment upon filing with the clerk of the court in which the conviction was had a certificate of the judge of such court, or of a justice of the Supreme Court, that in his opinion there is probably cause for appeal, but not otherwise;" also, that if this certificate is filed, "the sheriff must, if the defendant be in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judgment, and detain him to abide the judgment on appeal." Laws of Utah, 1878, p. 138. Upon the subject of bail, the same laws provide that "a defendant charged with an offence *148 punishable with death cannot be admitted to bail when the proof of his guilt is evident or the presumption thereof great;" also, that "if the charge is for any other offence, he may be admitted to bail before conviction as a matter of right;" further, that "after conviction of an offence not punishable with death, a defendant who has appealed may be admitted to bail: 1, as a matter of right when the appeal is from a judgment imposing a fine only; 2, as a matter of discretion in all other cases;" still further, that "in the cases on which the defendant may be admitted to bail upon an appeal, the order admitting him to bail may be made by any magistrate having the power to issue a writ of habeas corpus." Ib. pp. 142, 146.
These statutory provisions so clearly indicate the legislative intent that no room is left for interpretation. As the judgment did not impose upon the appellant a fine only, his admission to bail, pending the appeal from that judgment, was not a matter of right, but was distinctly committed, by the statute, to the discretion of the court or judge to whom the application for bail may be made. The exercise of that discretion is not expressly nor by necessary implication forbidden in cases in which the certificate of probable cause is granted; for, by the statute, that certificate only operated to suspend the execution of the judgment of conviction, requiring the officer having the accused in charge to retain him in his own custody to abide the judgment on appeal. We do not mean to say that the granting of such a certificate is not a fact entitled to weight in the determination of an application for bail, but only that the statute does not make it so far conclusive of the question of bail as to prevent the court from considering every circumstance which should fairly and reasonably control or affect its discretion. Whether the Supreme Court of the Territory abused its discretion in the present case is a question not presented by the record before us; for, it does not contain any finding of facts, nor the evidence (if there was any apart from the record of the trial, and of the proceedings upon the first application for bail) upon which the court below acted. Its judgment denying bail cannot, therefore, be reversed, unless, as contended by appellant, the certificate of probable cause *149 necessarily carried with it the right to bail, and deprived the court of all discretion in the premises. But that construction of the statute is not, we think, admissible.
At the argument, counsel for appellant laid stress upon the fact, averred in the last petition for habeas corpus, that the order committing him to the custody of the marshal had been executed by confining him at the penitentiary. The return of the officer is that the accused is in his custody under and by virtue of the order of commitment. It is not claimed that he is treated as a convict in the penitentiary undergoing the sentence pronounced in pursuance of the judgment appealed from, but only that the officer uses that institution as a place for the confinement of the accused while the latter is in his custody. Whether that action of the officer be legal is a question that does not now arise; for, the application to the Supreme Court of the Territory for habeas corpus only raised the question of the right of the accused to be discharged, on bail, from all custody whatever; and the present appeal is from the order, in that court, refusing such discharge, and remanding him to the custody of the marshal.
There is no error in the record, and the judgment is
Affirmed.
MR. JUSTICE MILLER and MR. JUSTICE FIELD dissented.
