53 Ala. 495 | Ala. | 1875
By the common law all offenses, however high, including murder and other felonies, and treason, were and still are bailable, before indictment found ; though not as matter of right in cases of capital felonies, but as matter of judicial discretion. The facts and circumstances of each particular case, regulated in a large degree the exercise of the discretion. Judicial decision established it as a rule, that one accused of a capital felony should be admitted to bail whenever, upon examination of the evidence, the presumption of guilt was not strong. But whether the felony was capital or not, if there was no reasonable doubt of guilt, bail was not allowed. It is said by Hawkins (Pleas of the Crown, B. 2, ch. 15, § 40): “Bail is only proper where it stands indifferent whether the party be guilty or innocent of the accusation against him, as it often does before his trial; but when that indifferency is removed, it would, generally speaking, be absurd to bail him.” The evidence producing this indifferency, the legal presumption of innocency was allowed to prevail. In Ex parte Baromut, 16 Eng. L. & Eq. 365, it is said by Erie, J. : “The principle has been fully laid down already, that where a crime is of the highest magnitude, the evidence in support of the charge strong, and the punishment the highest known to the law, the -court will not interfere to admit him to bail.
These principles of the common law are materially changed with us by constitutional and statutory provision. The bill of rights declares:. “All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, where the proof is evident, or the presumption great.” The statutory provisions are : “A defendant cannot be admitted to bail, where he is charged with an offense which may be punished by death, if the court or magistrate is of opinion, on the evidence adduced, that he is guilty of the offense in the degree punished capitally,” &c. B, C. § 4234. “In all others cases than those above specified, the defendant is, before conviction, entitled to bail as a matter of right.” B. C. § 4235. The policy pervading our jurisprudence is to commit as little as possible to judicial discretion — “that system of law is best which confides as little as possible to the discretion of the judge — that judge the best who relies as little as possible on his own opinion.” Under these constitutional and statutory provisions, bail becomes a matter of right, whether before or after indictment found, until conviction is had, in all criminal accusations, unless the offense may be punished capitally. The inquiry in this respect is not whether the punishment which must follow conviction is necessarily death. A felony is here defined as “a public offense which may be punished by death, or by confinement in the penitentiary.” With one exception, even when the offense may be punishable with death (B. C. § 3902), it is
The ojíense imputed is rape, punishable either by death, imprisonment in the penitentiary for life, or by hard labor for the county for life. R. C. § 3661. We have carefully examined the evidence disclosed in the bill of exceptions, and without to an opinion which should
The application must be denied.