43 W. Va. 637 | W. Va. | 1897
Eastiiam, being confined in the jail of Tucker County under a mittimus from a justice and an indictment for murder, obtained from a judge of this Court a writ of habeas corpus seeking discharge, or, if that be not granted,
I can not agree with Judges English and Dent in bailing the accused. Can this Oourt grant bail? The Code (chapter 156, section 6) grants that power only to justices and circuit courts and their judges. After giving justices limited bail power, it grants wide power to circuit courts, but none to this Oourt. Did the legislature intend to limit the power to those courts? If we. have power, it is not by statute, but springs from our jurisdiction in habeas corpus, as an incident to its exercise. The law generally seems to be that on habeas corpus the court may grant bail. 9. Am. & Eng. Enc. Law, 204; Williamson's Case, 67 Am. Dec. 374. But under our statute it was made a quaere whether this Oourt could bail on habeas corpus, in Quarrier's Case, 5 W. Va. 48. To me that quaere is serious, on reading the statute, which seems to intend to limit the bail power to circuit courts in the first instance; the way for redress, if any, in the improper exercise of the power, perhaps, being on writ of error. In this case bail was refused by the circuit court. Can we use habeas corpus as an appellate proceeding and reverse the circuit court? It is not an appellate proceeding. We can not review the circuit court’s action in the case, either in its procedure as to the grand jury or as to bail. Ex parte Mooney, 26 W. Va. 36; Ex parte Evans, 42 W. Va. 242 (24 S. E. 888). Can we use this writ, however, regardless of the circuit court’s action on bail, as an original process to procure bail? If so, it opens this Oourt to applications for bail in every and any case where the circuit court has refused bail. I see that section 6, chapter 111, Code, says that in habeas corpus the court shall discharge, remand or bail, thus inclining me to the conclusion that this Oourt can bail. The other judges think so. I will not say finally, because I do not think a case for bail is made. Now, the general rule is that a capital case is not bailable, except under strong showing of no probable cause to charge the accused. As 9 Am. & Eng.
Denied.