23 Tex. Ct. App. 100 | Tex. App. | 1887
Lead Opinion
In Scoggin’s case (6 Texas Ct. App., 546) this court, in discussing and determining the question as to the burden of proof upon the hearing of the writ of habeas corpus in a capital case, said: “The indictment against him being for a non-bailable offense, prima facie, justified his detention in prison. He undertook to show that he had a constitutional right to be admitted to bail; i. e., that the proof of his guilt was not evident. This could only be shown by exhibiting the proof. * * * * We believe that when a person is brought before a court of competent jurisdiction on a writ of habeas corpus, if it appear by the return of the papers attached that he is indicted for a capital offense, it is incumbent on him to show that he is entitled to bail; if he declines to introduce any évidence bail should not be allowed him.”
This rule was re-affirmed in Randon’s' case (12 Texas Ct. App., 145), and has not been overruled, or even questioned, in any subsequent decision of this or any other court, that we are aware of, but on the contrary, stands approved by every authority, without a single exception that we have examined, (Church on Hab. Corp., sec. 404; Vaughn’s case, 44 Ala., 417; Strange’s case, 59 Cal., 416; Springer’s case, 1 Utah, 214; Hefren’s case, 27 Ind., 87; Rhear’s case, 67 Ala., 94; Jones’s case, 55 Ind., 476; Ken
Independent of this line of concurring authorities, it seems that the rule announced in Scoggin’s case, supra, is impliedly sanctioned and established by a fair and reasonable construction of our habeas corpus act. In his petition for the writ the applicant must allege that he is “ illegally restrained in his liberty,” and oath must be made that the allegations of the petition are true, according to the belief of the petitioner. (Code Crim. Proc., art. 144,) This allegation is an affirmative one, and a well established rule of pleading is that the burden of proof rests upon the party who holds the affirmative of an issue. He is the actor, and it devolves upon him to establish by evidence the truth of what he affirms. Article 171, Code of Criminal Procedure, reads: “If it appear by the return and papers attached that the party stands indicted for a capital offense, the judge or court having jurisdiction of the case shall nevertheless proceed to hear such testimony as may be offered on the part both of the applicant and the State,” etc., clearly indicating that the testimony on the part of the applicant—the plaintiff— shall be offered first. Article 179, Code of Criminal Procedure, provides: “The applicant shall have the right to open and conclude, by himself or counsel, the argument upon the trial under habeas corpus,” again clearly indicating that he holds the affirmative, and must establish his allegation that he is “illegally restrained in his liberty.”
Again, the very section of the Bill of Rights which guarantees bail, contains the same implication. It provides that capital offenses, where the proof is evident, shall not be bailable, but further provides that this exception shall not be so construed as to prevent bail after indictment found, upon examination of the evidence in such manner as may be prescribed by law. (Bill of Rights, sec. 11.) Our habeas corpus act provides the manner of such examination, and, as we have seen, devolves the initiative upon such examination, after indictment found, upon the applicant, not expressly, but impliedly.
The rule we are discussing seems also to be founded in reason. If an indictment for a capital offense does not prima facie estab
All the members of the court concur in the opinion that the declarations and acts of John Alexander were inadmissible, it not being shown that applicant Smith authorized the same, or was in any manner connected therewith. This illegal evidence is not considered by us in passing upon the facts of the case.
Before passing upon the facts of the case we will consider a preliminary question which has been presented and argued with ability by counsel for applicant. In Foster’s case, 5 Texas Court of Appeals, 625, this court defines and explains the words “proof evident,” and lays down two rules by which judges and courts should be guided in determining whether or not the proof is evident. The first rule is that announced in Commonwealth v. Keeper of Prison (2 Ashm., 227), and is as follows: “A safe rule, where a malicious homicide is charged, is to refuse bail in all cases where a judge would sustain a capital conviction if pronounced by a jury on such evidence of guilt as was exhibited to him on the hearing of the application to admit to bail; and, in instances where the evidence of the Commonwealth is of less efficacy, to admit to bail.” The second rule is that laid down in McAnally’s case, 53 Alabama, 395, and is as follows: “If the evidence is clear and strong, leading a well guarded and dispassionate judgment to the conclusion that the offense has been committed; that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered, bail is not a matter of right.”
With respect to the first rule, we are convinced that it is wrong, and should no longer be recognized as a guide. It is ably and justly criticized in Budewell’s case, 57 Miss., 39, in the following language: “A verdict of conviction where no error of law has intervened, will never be set aside unless manifestly wrong, or, as is sometimes said, if there be any evidence to support it. To say that bail will only be granted where there is no evidence showing guilt, or where the proof of guilt is so slight upon the whole testimony that a conviction would be manifestly wrong, is plainly inconsistent with the constitutional requirement that it shall be granted in all cases except where the proof is evident or the presumption great. The error of the Pennsylvania rule” (the rule under consideration) “is in failing to give due effect to a verdict of conviction, or in overlooking the vast change it effects in the attitude of the party. By it the legal presumption of innocence is overthrown, all doubtful questions of fact are resolved in favor of the State, and the credibility o.r non. credibility of witnesses is conclusively established. As before remarked, where no error of law has been committed to the prejudice of the accused, the verdict will not be set aside unless the court can say that it is without evidence to support it, or that upon a review and inspection of all the evidence the finding is plainly erroneous. To apply such a test to a proceeding for bail, and to declare that it will be denied unless the relator has demonstrated that the evidence against him is of a like unsatisfactory character, is to reverse the constitutional requirement, that it shall be granted unless the proof is evident,” etc.
With regard to the second rule, it is not, as we can perceive, objectionable. It is, as we understand it, in harmony with the constitutional requirement that bail shall be granted unless the proof is evident. It is, in effect, the same rule stated as a correct one in Budewell’s case, supra, but in different language, that is, “If, upon the whole testimony adduced, the court or judge entertains a reasonable doubt whether the relator committed the act, or whether in so doing he was guilty of a capital crime, bail should be granted.” This rule applies when the case is considered on appeal, the court keeping in mind the prima facie legal presumption that the action of the trial judge was correct.
A majority of the court are not to be understood as holding that under the operation of this rule the evidence, though conflicting, may not at the same time be evident. To the mind of the tribunal passing upon the evidence the guilt of the applicant of a capital offense may be evident-, that is, clear, strong, not admitting of a reasonable doubt, and yet there may be evidence in conflict with such inculpatory evidence. It is not all conflicting, exculpatory evidence that will have the effect to raise a reasonable doubt of guilt and destroy or impair the force of “evident proof” made by inculpatory evidence. It is for the judge or court who hears the testimony to consider the evidence as a whole, and if by the entire evidence a reasonable doubt of the applicant’s guilt of a capital offense is not generated, the proof is evident and bail should be denied.
A majority of the court, considering the evidence in this case as a whole, notwithstanding there is a conflict in it with regard to the facts transpiring at the very time of the homicide, are of the opinion that such conflict does not affect the grade of the homicide, even conceding the truth of the defendant’s testimony, and that there is no error in the judgment refusing bail. Wherefore the judgment is affirmed.
Affirmed and bail refused.
Dissenting Opinion
Dissenting Opinion of Hurt, J,
The appellant, the relator below, made application for bail to the district judge of Travis county. The writ of habeas corpus was issued, and was answered by the production of appellant in court, the sheriff answering for cause of detention, that he held him by virtue of a capias issued upon an indictment charging him with the offense of murder in the first degree.
Upon the hearing under the writ, the State introduced the indictment, capias and the sheriff’s return thereon, and there rested its case. Upon this state of case, the appellant asked to be admitted to bail, propounding, that the .case made wg,s not such “ evident ” case as is contemplated in the Bill of Rights. The court refused this claim, holding, in effect, that the papers put in evidence made a prima facie “evident” case against the relator, placing upon him the burden of showing by evidence that the homicide was not murder of the first degree. The court
Was this holding in the Randon case a correct exposition of the law? Section 11 of the Bill of Rights provides: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses where the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found, upon examination of the evidence in such manner as may be prescribed by law.” That portion of this reservation of right to accused persons which prescribes the quantum of proof required (“evident” proof) may be rendered in another form. Thus: All prisoners shall be bailable by sufficient sureties in all cases, capital or otherwise, unless the proof be evident that the offense is capital. Hence, all persons charged with capital offenses are bailable by sufficient sureties unless the proof is “ evident;” the rule as to bail being that whether the offense be capital or otherwise, bail shall be allowed; and the exception being the case in which the offense charged is capital and the proof “evident.” Unless both these things, viz., the character of the offense and the amount of proof necessary to support it, concur, the offense is bailable. The general rule, therefore, being in favor of bail, the party relying upon the exception to the rule must allege and prove the exception.
The allegation contained in the sheriff’s answer in this case is that the relator is held under an indictment charging a capital offense. Under the rules of pleading in civil cases this answer would be insufficient; since, in order to deny the person charged this right, the proof of its capital nature must be evident. Let us concede for argument that the answer setting up an indictment for murder of the first degree alleges by inference a capital offense in which the proof is evident (a proposition which propounds a legal monstrosity), and that, therefore, the case is brought within the exception; the exception to the general rule being for the benefit of the prosecution, the prosecution must prove it. It must be shown by the State, from the evidence, that the proof is “evident” that the relator is guilty of a capital offense. But it is insisted that this is shown by the indictment, which charges the offense to be capital. Let it be conceded that the indictment furnishes proof of the allegations therein made, what are these allegations? They are that the relator is guilty of murder of the first degree, and hence guilty
We desire now to discuss the propositions as bearing upon the questions stated in the Randon case, before cited.
1. “ Where an applicant to bail is shown to be held in custody under a capias issued upon a valid indictment, he is not illegally restrained of his liberty; and," to entitle him to bail, it is incumbent upon him to show by proof that the charge upon which he is indicted is a bailable one. In other words, the applicant must show that, though held to answer a charge of capital offense, the proof is not evident against him, in order to meet the requirement of the Bill of Rights.”
It is true that when the prisoner is held under a capias founded upon a valid indictment, he is not illegally restrained, of his liberty. And this would be equally true if the indictment charged murder of the second degree, or theft. But can this be said when the prisoner is ready with sufficient sureties demanding bail of the proper authority? The restraint is illegal in no case in which the prisoner is held under a legal capias, whether charged with a capital crime or misdemeanor. The illegality consists in holding him when he applies for bail to the proper authority, with sufficient sureties, and is denied bail. And as the general rule in all cases, whether capital or not, is in favor of bail, to justify a denial of it the State must bring the case within the exception, by producing testimony to show a capital offense in which the proof is “evident.”
2. It was further said in the Randon case; “The court, be- ■ ing informed as to the nature and cause of his arrest and detention, could not do otherwise than to remand him to custody, for the reason that, prima facie at least, he was being held for a non-bailable offense.”
The position here assumed is that, where a prisoner is charged with a capital offense, the presumption of guilt arises, and at least a prima facie case is presented. I hold that nothing be
We have been treating the subject upon the assumption that some presumptions may be indulged from the fact that the grand jury has charged a prisoner with a capital offense. We now propose to discuss the question as to whether any presumption can be legally drawn from the charge in the indictment at all. We seriously ask, by what authority can a court hold that which has never been held as proof in any other case, as proof “evident” in this case? Why shall we say that the presentment of a grand jury is evidence in this, when it is evidence in no other case? To illustrate: A is indicted for a capital offense, and on an application for bail the indictment proves him guilty as charged. B is indicted for a capital offense; is upon final trial, and the indictment proves nothing—is evidence of nothing except that B is indicted for a capital offense. We demand a reason for this distinction; for, if the indictment proves guilt in A’s case, its probative force is just as cogent in B’s case. In A’s7 case, the proof must not only show guilt of a capital offense, but it must be “evident.” In B’s case, the proof must show guilt beyond a reasonable doubt; but in both cases the guilt of the party is the issue of fact to be determined. 'If it be granted that proof beyond a reasonable doubt and “evident” proof are the same, so far as quantum of proof is concerned, then the fact - to be determined in both cases would be precisely the same,.and with the same quantum of proof. How, then, it is asked, can the indictment be presumptive proof of one and not of the other? Upon what principle of evidence can this distinction he sustained? Mr. Bishop, one of the most philosophical of our elementary writers, in his work on Criminal Procedure, makes the following
Let us pursue the authorities a little further, promising a return to the subject of presumption before closing. In The People v. Lindon & Smith, 19 California, 538, this proposition is stated: “An indictment, under our criminal practice act, is something more than a mere accusation based upon probable cause. It is an accusation based upon legal testimony of a direct and positive character, and is the concurring judgment of at least twelve of the grand jurors that, upon the evidence presented to them, the defendant is guilty.” This inference of the court is drawn from the fact that the statute of that State requires the grand jury to find a bill only in cases in which all the evidence before them, taken together, is such as, in their judgment, would, if unexplained or uncontradicted, warrant a conviction by the trial jury; and if such evidence, unexplained or uncontradicted, would not warrant such conviction, they ought not to find an indictment. The constitution of that State contains a provision that “ all prisoners shall be bailable by sufficient sureties, unless
In this State, however, the prisoner is bailable unless in a capital case where the proof is “evident.” Presumption has no part or lot in this matter. If, however, we use the word “presumption” to express the effect or result of the circumstantial evidence in the trial for bail, we would not object; for it would, when thus used, be proof. But we deny that a presumption from the presentment of the indictment can be tortured into proof.
But to return to the case under consideration. It is held that “The finding by the grand jury of the indictment can not be reviewed on application for bail in capital cases. The statute makes no provision for preserving the testimony taken before the grand jury, and impliedly prohibits the disclosure of such testimony, except in certain cases specially named. Nor can affidavits or oral testimony as to the guilt or innocence of the accused, be received to rebut the presumption of guilt arising from the indictment in capital cases, except under special and extraordinary circumstances.” In support of this proposition, decisions from States having like constitutional provisions, as well as from, the common law, are cited, viz: The People v. Benoit, 1 Martin (La.), 142; The People v. Hyler, Parker’s Criminal Reports, 570; People v. McLeod, 1 Hill, 394; Hight v. The United States, 1 Morris, 410; 1 Chitty’s Criminal Law, 129; State v. Hill, 2 Dev., 421; Burr’s trial, 312.
Now to restate: “All prisoners shall be bailable by sufficient sureties unless in capital cases where the proof is evident or the presumption great.” A is charged by indictment with a capital offense. The presumption is great, because he is so charged.
The common law rule being well understood by the Constitution makers, may we not with reason presume that it was intended to change this rule and give the prisoner, whether charged by indictment or otherwise, the right to bail in capital cases, unless where the proof was evident, or the presumption (arising from legal testimony) was great P May we not for once presume that, instead of approving the common law rule, in capital cases as well as other felonies, it was the intention of the Constitution makers to depart from the common law P For it appears very difficult, in a great many instances, for the people in their sovereign capacity to break loose from the common law. Though employing the clearest and most explicit language to express their will, the courts, when called upon to enforce their enactments, with hot haste rush to the common law for construction where none is needed, and frequently by assumptions, reckless presumptions and constructions, emasculate or render nugatory the simplest and clearest constitutional provisions.
In this case what have common law rules to do with this plain provision of the Bill of Rights? The meaning: is obvious. “ All
This rule, it may be added, is closely allied to a family of rules which were blots upon the judicial history of England; such as that in felony cases the accused was not permitted to introduce any testimony, or allowed counsel; and, when afterward allowed to introduce witnesses, they were not permitted to be sworn. “The prisoner was not permitted, in felony cases, to call witnesses, though present; and the jury were to decide on his guilt or innocence, according to their judgment, upon the evidence offered in support of the prosecution. And though this latter practice of rejecting evidence for the prisoner was abolished about the time of Queen Mary, yet the witnesses could not be sworn in behalf of the prisoner, but were examined without any particular obligation, and therefore obtained but little credit with the jury. It is noticeable that Queen Mary, in appointing Sir Richard Morgan Chief Justice of the Common Pleas, enjoined him 1 that, notwithstanding old errors, which did not admit of any witness to speak, or any other matter to be heard in favor of the adversary, Her Majesty being party, Her Highness’s pleasure was that whatever could be brought in favor of the subject should be heard, and, moreover, that the justices should not persuade themselves to sit in judgment otherwise for Her Highness than for the subject.’ The greatest legal authorities are evidently of opinion that there was no foundation in reason for these tj vannical practices.” (1 Chitty’s Crim. Law, 624.)
Now, it is very remarkable, indeed, that “the greatest legal authorities” were “decidedly of the opinion that there was no foundation in reason or in justice for these tyrannical practices,” and yet a woman, not presumed to be learned in the law, should, in advance of the learned judges, take this first step forward on the line of justice and reason. By her the tyranni
Upon what foundation, presumption or assumption, did this rule rest? There seems to have been two grounds: 1, that as the sovereign was a party the subject should not be permitted to impeach or question the testimony offered by this high litigant,by introducing other witnesses; and, 2, that, since the prisoner was on trial for felony, the witnesses would, in view of the fearful consequences, speak the truth, the whole truth and nothing but the truth, as bound by oath to do. But in this there was a terrible mistake, the proposition being unsupported—indeed, in direct conflict with the fact—in a large number of cases. Hence “ the greatest legal authorities ” pronounced the rule “ tyrannical and without foundation in reason or justice.” In felonies, other than treason, the prisoner was denied counsel. We are told it was the duty of the judge to examine witnesses for him; to advise him for his benefit, and to assist him in defending himself; taking advantage, also, of every obvious defect or irregularity in the conduct of the prosecution. (1 Chitty’s Crim. Law, 633.)
Now, since it was the duty of the judge to act as counselor, friend and advisor of the accused, it was presumed—assumed— that he performed his duty, and bore himself faithfully in this responsible relation. And notwithstanding the absolute fact that, in very many cases, a malignant prosecutor was found in the person of the judge, the silly and unjust presumption remained the same. It was sufficient cause to deny the accused counsel, because the law imposed that duty upon the judge. Was this duty always honestly performed? The blood of hecatombs of innocent victims sacrificed to this monstrous rule furnishes an eternal negative to the assumption.
Now to the analogy: It was the duty of the judge, under the English rule, to represent and protect the interests of the prisoner, and, therefore it was presumed—assumed—that he discharged the duty; hence he was denied counsel. It is the duty of the grand jury, under the California statute, to have before them sufficient evidence, prima facie, to convict, before they shall find an indictment; therefore, it is presumed—assumed— that such evidence was in fact before them. I assert that it is
I now take leave of the case made under the California statute, remarking that it has little, if any, application to the case in hand. For, as has been seen, 1, the constitutional provision with, reference to bail in that State radically differs from ours, bail not being there allowed if the proof be evident, or the presumption great; and, 2, the law of that State requires that the grand jury shall have before them such evidence as would convict upon final trial for the offense charged in the indictment; and, finally, there is no authority in the practice of that State for using the witnesses, or their testimony, who were before the grand jury on application for bail. In this State the Constitution provides expressly that the provisions relating to the right to bail, “shall not be so construed as to prevent bail after indictment, upon examination of the evidence, in such manner as may be prescribed by law.” (Bill of Rights, sec. 11.)
Thus it appears that there may be an “examination of the evidence,” notwithstanding the indictment. As to what is meant by “ the evidence,” there is scarcely need for explanation. Referring again to the California cases, it is asked, if the Constitution confers a right, shall it be rendered nugatory because neither the common law nor the statute provides means for enforcing the right?" I concede that the Constitution may confer a right in such manner as that it is inoperative without auxiliary legislation, but I am not aware that in order to give force to the Constitution it is necessary to repeal existing laws which stand in the way of its enforcement. The Constitution, being the organic law, ex propria vigore, removes all legislative obstacles to the proper working of its provisions. Several cases have been examined which arise under a constitutional provision that “all-prisoners shall be bailable by sufficient sureties, unless for capital offenses, where the proof is evident or the presumption great;” and the uniform construction given to the latter clause is that “ presumption great ” is furnished by the finding and
It will be borne in mind that there is no law in this State prescribing the quantum of proof necessary to warrant the grand jury in presenting an indictment, as is the case in California; and hence the presumption that the grand jury obeyed the law does not arise. The only direction is given in the oath to be taken by the members of that body to the effect that they "shall present no person from envy, hatred, or malice; neither shall they leave any person unpresented for love, fear, affection, or hope of reward; but they shall present things truly as they come to their knowledge, according to the best of their knowledgeIn this latter portion there is nothing said about the quantum of evidence, or the method by which the things to be presented are to be brought to their knowledge. Usually this is done by the examination of witnesses; but in many cases presentments are made upon depositions taken by examining courts, and in other cases upon reports made by individual members of what they have learned from others; and not infrequently the rumors and suspicions among the people are reported and acted upon as sufficient to support the presentment. With these observations, let us proceed with the argument on the degree of presumption arising from the indictment.
Possession of property recently stolen, unexplained, is prima
To view the.matter in another light: In a great majority of cases, in which a party is indicted for capital offense he is, in fact, guilty of capital offense. A is indicted for capital offense; therefore, A is guilty of such offense. The same gap in the premise exists as before; for it may be safely asserted that of . five indictments charging capital offense, there is not more than 1 one which the evidence supports. We remember but very few instances in the judicial history of the State of a grand jury’s '■ presenting an indictment for murder of the second degree, or. negligent homicide; and bills of indictment charging manslaughter are rare exceptions in the criminal pleading of the State. The practice is to indict for the highest grade, and the general result is a conviction for a lesser grade. If, therefore, there is not more than one of five parties actually guilty of; capital offense, though thus charged, the correct presumption would be that the chances of guilt were in that ratio. And, if we are to presume anything at all from the indictment, the logical and just presumption would be that there are four cases of five in which the offense is either less than capital or no offense at all. On this line of reasoning we are, therefore, to conclude that, in the ratio of four to one, the presumption arising from indictments for capital offense is against the guilt
We now desire to make some observations on the question as to what presumption, if any, may arise from the presentment of an indictment. Bearing upon the duties of officers in whose custody the accused may be, the nature and gravity of the charge is of first importance. And, in passing upon the right to bail and the amount thereof, the character of offense charged should be looked to. This should be done in all cases in connection with the proof looking to the character of the offense charged and the applicant’s ability to give bail. But the right to give bail in no case, except capital, is to be determined by the strength of the criminating testimony. The nature and gravity of the charge control up to the hearing for bail. Upon the hearing, it is in all cases the nature of the charge, the character of the evidence and the ability of the applicant which control. But the right to bail, except in capital cases, depends upon none of these. Before the evidence is developed in any form of hearing, the officer having the accused in custody, or the court, if in session, is governed as to the amount by the character of the charge and the ability of the accused, taking as a guide that the ends of justice are met when the amount fixed renders it reasonably certain that the party bailed will appear and answer. In this there is no presumption of guilt, the court not looking to this, unless required by the prisoner. But when the prisoner, with sufficient sureties, demands bail, to justify its denial it must be shown that he is guilty of capital offense, and his guilt must be made evident. This can only be done by an examination of the evidence. (Vide latter clause Bill of Rights.) In express terms this right to bail is given in capital cases even, unless guilt is made evident by the proof. Proof is the effect, the result, of evidence; and without evidence, legal and competent, there can be no proof. When, therefore, the examination is had, for which section 11 of the Bill of Rights provides, presumptions, except such as arise on competent evidence adduced on the hearing for bail, are not to be indulged; ' because the right to bail in capital cases must be determined by the evidence; the right in other cases being clear, irrespective of the evidence. At the common law, indictment for felony, whether capital or not, precluded the accused from a hearing on the facts; consequently, whether guilty or not, his “ sureties ” were “ the four walls of the prison.” Under this barbarous
Admonished by these grievous abuses, may we not reasonably conclude that, our Constitution makers meant to depart from the common law practice, with its illogical presumptions of guilt arising from a criminal pleading, and in doing so to guard against its revival by securing in the organic law larger intendments in favor of personal liberty ? In this awakened care for the rights of the citizen, the careful framing of our Bill of Rights and great writ of right—the habeas corpus—found its incentive. With these muniments of right to hedge him about, the accused, though steeped to the eyelids in crime and pent in by bars of triple steel, may demand enlargement for inquiry into the causes of his distraint. Upon such inquiry his liberty is not to be presumed away by legal fiction springing out of the allegations of an indictment; his right to bail is indefeasible, save by Ms own criminal acts, the verity whereof is to be determined by legal evidence adduced upon the hearing. Evident guilt of capital offense, established in the proceeding, is the sole condition of forfeiture of the right to bail.
What presumptions, then, it is again asked,'arise from the indictment? As none arise upon final trial, so do none upon a hearing for bail; for the presumption of innocence follows the accused until his guilt is fixed by legal evidence beyond a reasonable doubt. The officer having the accused in custody should look to the nature of the charge, whether his prisoner be indicted or not, with a view of regulating the care and means to be used for his safe keeping. What presumption he or others may draw from the existence of an indictment can never be a practical matter bearing upon the subject. Whether indicted by a grand jury, charged by complaint or committed by a magistrate, the prisoner’s right to a hearing remains the same. And upon the hearing of the evidence his right' to bail is determined; determined by the testimony heard, and not by the indictment or the nature of the charge. Presumptions of guilt before hearing for bail may or may not be drawn, for they are comparatively innocuous; but when the hearing begins they must step aside and give way to the evidence. In the Randon case I assented to a doctrine differing from that here expressed; and my responsibility for the opinion filed in that case is equal with that of my learned brother who prepared and read it from the bench. Subsequent and
We now come" to consider the appeal upon its merits. Does the evidence make evident the proof of guilt of a capital offense? This proof must be made by competent evidence adduced upon the hearing for bail; and all illegal testimony brought out, over objection, must be treated here just as though it formed no part of the statement of facts. It appears from the record that one-John Alexander, some twenty-five or thirty minutes before the killing, procured of Leonard Eck a pistol of calibre forty-four or forty-five, stating to Eck that he wanted the pistol for Smith, the applicant, and that the pistol was not loaded when procured. In a very short time after this, Alexander carried a forty-five calibre pistol to Petmecky’s, seventy-five yards distant from the Raymond House (near which the homicide occured), purchased cartridges and loaded the pistol; this being fifteen or twenty minutes before the shooting. Alexander worked for applicant at the Raymond House, but left soon after the killing and has not been seen since. Immediately after the shooting, applicant handed Sheriff Hornsby, at his request, a forty-five calibre pistol,nickel plated and walnut stocked. The pistol obtained from Eck by Alexander was a forty-four or forty-five calibre six shooter, of Colt’s pattern, and was returned the next or second day after the killing by some person not known. The object of this evidence was to show preparation, and hence a cool and deliberate killing. Is applicant connected with Alexander and responsible for his acts? Hot by competent, but hearsay evidence. Were the acts and declarations of Alexander of the res gestee? We think not. Was the pistol obtained by Alexander in fact the weapon used by applicant Smith? May have been, but is not shown to have been by such proof as was accessible, if that was the fact. What did Hornsby do with the pistol handed him by Smith? Who returned Eck’s pistol? Was Ecl^’s pistol nickel plated and walnut stocked? These are questions pertinent to a proper understanding of this matter. We will not decide whether or not the acts and declarations of Alexander would be admissible in case it should be shown that applicant used the Eck pistol; but we are clear in the opinion that they were not admissible under the facts as presented in this
Before passing upon the right of appellant to bail in, this case, we desire to notice a rule established by this and other courts of last resort. It is this: -cIt is a safe rule, where a malicious homicide is charged, to refuse bail in all cases where a judge would sustain a capital conviction, if pronounced by a jury, on such evidence of guilt as was exhibited to him on the hearing of the application to admit to bail; and, in instances where the evidence of the State is of less efficiency, to admit to bail.” (Ex parte Foster, 5 Texas Ct. App., 225; Commonwealth v. Keeper of Prison, 2 Ashm., 227; Hurd on Habeas Corpus, 438; State v. Simmons, 19 Ohio, 139; Ex parte Bryant, 34 Ala., 270.) Before entering upon the discussion of this rule, however, it is to be observed that the right to bail is not determined by a jury, but is to be granted or refused by the judge or court; and, further, that a prisoner is entitled to bail, unless he be guilty of capital offense and the proof of his guilt be made evident. These two propositions are distinctly affirmative in their nature: First, the'proof must be evident that the offense charged is capital; and, second, the proof must be evident that the prisoner is the perpetrator of such capital offense. Who is to test their verity? The jury? By no means. The judge or court, having the right to. bail, is the only tribunal which can determine their truth. What, therefore, has the supposed verdict to do with this matter? With these observations in mind, let us examine the merits of the rule. If a jury, says this rule, were to convict of capital offense upon the evidence adduced upon a given hearing for bail, and the judge would sustain such conviction, then bail should be refused. There is nothing practical in this rule; it is, in fact, misleading. It assumes that the jury will convict of capital offense, in a case in which the proof of guilt of such offense is not evident; otherwise there is nothing in the rule. Suppose, in the judgment of the judge hearing the application for bail, the proof is not evident, upon what legal intendment could he suppose a jury would convict? If the guilt of the prisoner is not evident to the judge, he can not fairly assume that a jury would convict, unless upon proof less than evident proof. On the other hand, if the proof of guilt is evident, there is no need of a supposed conviction; the test is not wanted, for the question would be decided before it could be applied. But, two views may, in some cases, with reason be taken of the facts
As above stated, the judge or court, and not a jury, must decide the right to bail. The applicant has a right to the judgment of the judge upon his application. It will not do for the judge to speculate upon the decision of a jury, and thus substitute a supposed verdict for his judgment; for it is his duty and the applicant’s legal right that he, the judge, shall determine the matter. Mow, let us suppose that, in the opinion of the judge, the proof is not evident, what right has he to engage in suppositions at all? If his judgment favors the granting of bail, his obligation to duty should enforce it, without indulging in speculations as to what a jury might do in the premises.
It may be further said that the rule under discussion contains a serious error, since it assumes that the judge will not sustain the verdict unless the proof is evident—evident not alone to the mry but to him. To deny bail the proof must be evident; hence, the verdict of the jury must be equal to, or rather the result of, evident proof; if it is not, the measure of the Bill of Bights is not met and supplied.
By what rule should the trial judge and this court be governed with regard to verdicts of juries? Referring to the ninth subdivision of Article 777, Code of Criminal Procedure, and the authority of the Supreme Court to reverse the judgment in a criminal action, upon the law or the facts, Chief Justice Roberts, in Talbot v. The State, 44 Texas, 95, says; “ These provisions impose upon the district court in the first instance, and afterward upon this court, the responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand and become a precedent in the adjudication of offenses under the law. The performance of this duty on the part of the court is the exercise of a legal discretion and judgment as to what facts should be sufficient to rebut the legal presumption of innocence to which every one is entitled upon his trial for an offense. * * * There must be legal and competent evidence particularly identifying the defendant with the transaction constituting the offense charged against
Again, if there be a conflict in the evidence, and that which supports the verdict be reasonable and pertinently connecting the defendant with the transaction which constitutes the offense charged, this court will not reverse, notwithstanding the exculpating evidence may be competent, natural and reasonable. If, however, there is no conflict, but the exculpating facts explain and render consistent with innocence the criminating facts, which, prima facie and without explanation, are sufficient to support the verdict, this court will reverse in cases in which the credibility of the witnesses who testify to the exculpatory facts is not in some way drawn in question. Should these rules apply to and govern the judge, or the court, in passing upon the right to bail? Upon final" trial the jury are the judges of the weight of the testimony and the credibility of the witnesses; and when they have performed this duty and rendered a verdict of guilty, this court is loath to disturb their verdict. Let us illustrate this matter: A is upon trial for murder. Quite a number of witnesses swear to facts which, if true, warrant a conviction. On the other hand, an equal number testify to facts which, if true, justify an acquittal. The criminating and exculpating facts are here in conflict. Now, if in this state of case, there should be a conviction, this court would not disturb the verdict. But suppose such a case was presented to the judge, or to this court, on hearing for bail? Could it, with reason, be said that the proof was evident? By no means, and the assertion is ventured that all courts of last resort frequently affirm judgments upon a state of facts under which, if called to pass in the first instance, they would have reached a different conclusion.
Now, to be in harmony with the Bill of Rights, in order to constitute the verdict of the jury a just test the rule should require a reversal in cases where the proof is not evident. The standard can not be lowered; the prisoner must have bail unless there be such proof. Who will assert that the trial judge, or
From the propositions argued, the following rules for application to this case are deduced: 1, the burden is on the State to establish by evident proof that a capital offense has been committed; 2, that by the same character of proof the prisoner is the guilty perpetrator of such offense; and, 3, that to deny bail the judge, or court, must find both these propositions in the affirmative.
A discussion of the evidence in this case would be improper, premising that two or more theories are presented, each having support in evidence and reason. I do not indicate which theory I think is supported by the weight of the testimony, as well as the more cogent reason. Suffice it to say that there is evidence and some reason to support either. This being the case, the proof is not.evident. It is not here intimated that bail is to be granted in all cases where the evidence is conflicting. If the criminating facts are so cogent and conclusive as to show that the conflicting evidence, or theory, is evidently not true, by reason of mistakes or perjury, etc., bail should be denied.
The views here discussed are concluded with an extract from the opinion of Justice Moore in Ex parte Miller, 41 Texas, 313: “ The only question, therefore, which we are called upon to determine, or which it is even proper for us to consider in this case in its present attitude, is, Does it evidently appear from the testimony submitted to us that appellant is guilty of murder in the first degree? If not, although he may be guilty as charged in the indictment, we have no discretion, but must admit him to bail. And as we are not authorized to analyze and weigh the testimony to ascertain and determine whether it preponderates in favor of or against appellant; nor can we speculate as to the conclusion to which the jury may come if the case was submitted to them on the evidence in the record before us-, and since, whatever may be the conclusion which should be reached by those whose duty it may be to decide it, when appellant’s guilt or innocence (or, if guilty, the degree of his guilt) comes to be finally determined, a careful examination of the record does not authorize us, in view of the conflict in the evidence, * * * * to say that the proof of his guilt of a' capital offense is evident, -we must hold that he is entitled to bail.” The italics are ours, and are used to call special attention to the pointedly pertinent portions of the extract.
Opinion delivered February 16, 1887,