April 23, 1930
Appeal from the District Court of the United States for the Eastern District of New York.
Before LEARNED HAND, CHASE, and MACK, Circuit Judges.
With the amount fixed for bail, while it appears to us rather high, we will not interfere. It is a matter peculiarly within the discretion of the District Judge, of which he is in the best position to deal. The requirement that the defendant shall furnish a surety company bond stands quite differently; in our judgment it deprived the defendant of a substantial right. He may, if he chooses, give such a bond, and indeed it may turn out that no other sureties will be able to qualify upon exception. That must await the proof. But to say in advance that no individual surety will be accepted is to prejudge that issue which he is entitled to tender and have decided in good faith. We therefore hold that the learned judge went beyond his powers in this regard, and that the defendant must have an opportunity to offer individuals as his bail, subject to the usual conditions as to justification. Whether they can justify, we leave entirely open, without suggesting that the result in application may turn out different.
Order reversed as to the requirement of a surety company bond.
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