227 Mo. 393 | Mo. | 1910
On the 15th day of December, 1909, by the judgment of the circuit court of Lawrence county, the petitioner was sentenced, upon a verdict' of guilty of murder in the first degree, to the penitentiary of this State for a period of his natural life from and after the 14th day of December, 1909. From that judgment and sentence he prayed and was granted an appeal to this court and the said appeal in contemplation of law is now pending in this court.
On the 5th day of February, 1910, the petitioner applied to this court for an order of supersedeas staying the execution of said sentence pending his said appeal in this court; and the supersedeas was granted and served on the sheriff of Lawrence county, and accordingly the prisoner is in the custody of the said sheriff waiting the determination of the said appeal. On said 5th day of February, 1910, petitioner also filed his petition in this court for a writ of habeas corpus to require the sheriff to produce his body in this court, and that he might be admitted to bail pending his said appeal. The writ issued and was return
The petitioner bases his application for bail upon section 24 of the Bill of Rights, or article 2 of the Constitution of this State, which provides: “That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.” His contention is that the assessment of punishment and sentence for life imprisonment repelled and effectually removed not only all weight of evident proof and great presumption of capital guilt, but established the fact that he is not guilty of a “ capital offense,” and that there is no possibility of his capital punishment until the existing judgment and sentence has been reversed on appeal; that there is no longer room for contention that this court is now dealing with a petitioner whose status is that of one liable to punishment by death and that he has not been convicted of a capital offense; that a capital crime is one
It is evident that petitioner is not entitled to bail under section 2702, supra, because by its very terms, he is excepted from its provisions as he is under sentence of imprisonment for life in the penitentiary, and such is the purport also of sections 2698 and 2703. It is to be observed that section 2702 does not except those who have been found guilty and sentenced for a capital offense, but specifies that where the defendant is under sentence of death or imprisonment in the penitentiary for life h.e is not entitled to bail pending his appeal or writ of error. So that if we look to the statute for authority to bail, clearly the petitioner is not entitled to it under the statute. There is no constitutional right of appeal and in allowing appeals from sentences in criminal causes, it was entirely competent for the Legislature in providing for an.appeal to provide also for bail pending the same, or to refuse bail as it deemed best.
Recurring now to the contention of the petitioner that he is entitled to bail by virtue of section 24 of the Bill of Rights, and that it was not within the power of the Legislature by the enactment of section 2702 to deprive him of the right of bail, let us consider the
In Ex parte Fortenberry, 53 Miss. 428, it appears that by section 8 of article 1 of the Bill of Rights of that State, there was a constitutional right to bail “except for capital offenses, when the proof is evident or presumption great,” and that by the Code of 1871, section 2630, of that State, murder was punish
As opposed to this view of the law, learned counsel for the petitioner cite us to Ex parte Walker, 28 Tex. App. 246. In that case it appears that the Bill of Rights of Texas provides, “All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident.” Article 55 of the penal code of that State defines a “capital offense” as one “for which the highest penalty is death,” and article 609 of the penal code declares murder in the first degree to be a capital offense, but by article 35 of the same code, it was provided that a person who commits murder in the first degree before he arrives at the age of seventeen years cannot be punished with death. Accordingly it was held that murder committed by one under seventeen was not a capital offense and therefore he was entitled to bail before conviction. The court cited In re Perry, 19 Wis. 676. The Constitution of Wisconsin provides that, “all persons shall before conviction be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great,” but by the Laws of 1853 capital punishment was abolished in that State. It is evident that these last cited cases do not apply to a statute like ours, because in those cases in no event could the
In Ex parte McCrary, 22 Ala. 65, the petitioner had been indicted for murder and applied for bail, which had been refused by the circuit court. Thereupon he applied to the Supreme Court for a writ of habeas corpus to revise the action of the circuit court. It appeared in that case that the constitutional provision was that “all persons shall, before conviction, be bailable by sufficient securities, except for capital offenses where the proof is evident or the presumption great.” It appeared also that, by the penal code of that State, in all cases of murder in the first degree, the jury had the power to say whether the accused should be punished with death, or sent to the penitentiary for life, and the contention was there, as here, that since the adoption of the penal code, murder in the first degree was not a capital offense within the meaning of the Constitution, but the Supreme Court said: “It is true that since the adoption of the penal code, the jury, in all cases of murder in the first degree, have the power, and it becomes their duty, to say whether the accused shall be punished with death, or sent to the penitentiary for life; but this does not authorize us to say that murder in the first degree is not a capital offense. It may be capital or it may not, according as the jury decide. The fact, however, that they may decide, does not make the offense less capital before the trial is had, in the sense in which the term ‘capital offense’ is employed in the Constitution. . . . The obvious intention of the framers of the Constitution, denying to the Legislature the right to pass any laws impairing the right of bail, except in capital cases, was, as to these offenses, to leave them free to pass such laws as they please. This clause of the Bill of Rights in the Constitution was, many years since,
It will be observed that the Constitution of Alabama limits the right to demand bail “before conviction. ’ ’ These words are absent from our Bill of Rights, and this brings us now to the final contention of the petitioner, that the jury having by their verdict assessed his punishment at imprisonment for life, the offense is no longer capital and the verdict has removed him for the time being from the category of the constitutional description of capital offenders, and hence by the very terms of the Constitution he cannot be deprived of the privilege of bail. And therefore that the decision in Ex parte Dusenberry, which was predicated upon an application for bail before conviction and at a time .when the defendant was liable to be punished by death, cannot govern petitioner’s right to bail, now that he has been found guilty of murder in the first degree and his sentence pronounced and his punishment assessed at imprisonment for life only.
As already noted, in some of the States, the provision in their Constitutions is “that all persons [or prisoners] shall, before conviction, be bailable by sufficient securities, except for capital offenses, where-the proof is evident or the presumption great.” Obviously in those States this constitutional right doe's not exist after conviction on appeal or writ of error, but whether bail shall be granted is in the discretion of the court as at common law or governed by the-statute, the Legislature not being inhibited to make-such provision as it may deem just or proper. But is not this the meaning of our Constitution, even though the words ‘ ‘ before conviction ’ ’ are not used ¥ We think-it is.
In Ex parte Voll, 41 Cal. 29, the prisoner had been convicted for manslaughter. The Constitution of California provided: “All persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident, or the presumption great.” The statute of that State provided that a person charged with such an offense as manslaughter may be admitted to bail before conviction “as a matter of right,” but after conviction, “as a matter of discretion” merely. After Yoll had perfected his appeal, he sued out his writ of habeas corpus to be admitted to bail, alleging his right to bail. His counsel denied the constitutionality of the statute in so far as it enacted that a conviction already had should take away the right of bail and leave it to the discretion of the court, upon the-facts appearing in a particular case. It was insisted that the language of the Constitution was sufficiently broad to embrace not onlya case where no trial had been had, but equally a case in which a conviction of an offense less than capital in degree had occurred; that the
We think the construction put upon the Bill of Rights in California and Texas, in which the words “before conviction” are omitted, as they are in our Constitution, is the correct one. We think the language of section 24, article 2, óf our Constitution clearly refers to the right of bail while yet there is room for presumption and while the “proof evident” is open to consideration by the court or judge to whom an application for bail is made, and not to a time when presumptions and proofs are merged in a verdict of guilty. In 3 Am. and Eng. Ency. Law (2 Ed.), p. 675,, it is said: “In the United States, after conviction,, no constitutional right to bail exists, and the granting-of bail rests in the sound discretion of the court.” This would be the rule in this State, under our constitutional provision, in the absence of a statute, but, as the Legislature by section 2702, Revised Statutes 1899, denies bail where the defendant appeals or prosecutes a writ of error from a sentence of death or imprisonment in the penitentiary for life, the courts no longer have the power to admit to bail after a conviction and sentence either of death or imprisonment in the penitentiary for life.
It follows that in our opinion section 2702 does not infringe the Constitution and must govern the petitioner’s application, and it must be and is accordingly denied, and the petitioner is remanded to the custody of the sheriff of Lawrence county to await the determination of his appeal in this court.