The petitioner obtained a writ of habeas corpus from this court with a view to his admission to bail. It appears that he is in custody by virtuе of a commitment on a charge of rape.- An indictment for that offense has been duly found against him by the grand jury. The case has not reached its first hearing
By the constitution it is provided : “ That all persons shall bе bailable by sufficient sureties, except for capital offensеs, when the. proof is evident, or the presumption great.” Sec. 24, Bill of Eights. We are hence to decide whether under our laws the petitionеr is charged with a “capital offense.” His counsel has offered no evidence to remove the presumption arising from the indictment that “the proof is evident or the presumption great” (People v. Tinder,
By our statutes it is provided that every person convicted of this charge “shall suffer death or be punished by imprisonment in the pеnitentiary not less than five years, in the discretion of the jury.” R. S. 1879, sec. 1253. The offеnse may therefore be punished with death, but is not necessarily so punishаble. A “capital offense” is one which is punishable — that is to say, liablе to punishment — with death. This is the substance of the definitions by the lexicographers, both professional and lay. The offense, then, is a capital one within the meaning of the constitution.
But it is claimed further that the law in questiоn is unconstitutional in delegating to the jury the discretionary power above indicated. It is suggested in this connection that should a defendant plead guilty, and no jury therefore be called, the court could pronounce no sentence, the power to fix the punishment being given to а jury only. In construing a law, we endeavor to give
Should a defendant рlead guilty to such a charge and no jury be therefore required, the сourt could lawfully proceed to sentence by virtue ■ of the section providing that “ in all cases of judgment by confession, the court shall assess and declare the punishment, and render judgment accordingly.” (Seс. 1930). That the legislature may lawfully vest in the triers of fact a power to determine the punishment within certain limits (as in the law here discussed) we do not doubt. The justice of doing so, and thereby permitting such a measure of punishmеnt to be inflicted as the circumstances of each particular case may demand, was probably apparent to the law-makers and need not be discussed here.
The petitioner should be remanded and it is so ordered,