36 Kan. 725 | Kan. | 1887
Opinion by
The respondent insists that because the petitioners have once waived preliminary examinations for the offense of murder in the first degree, they are not now entitled to have the charges against them investigated, orbe let to bail. We shall first consider this question: A defendant -who is charged with murder in the first degree, and who has waived a preliminary examination for such offense, not only waives his right to be let to bail, but also to have the facts and circumstances of the alleged offense examined into on a writ of habeas corpus. But to this rule there are exceptions; as where at the time of such waiver of examination there are good grounds to believe that if an examination is gone into, personal violence will be used against defendant, and under such apprehension an examination is waived, he will not be estopped by reason of such waiver. To be es-topped, he must have waived his right to an examination from a free choice, after a fair opportunity to have an impartial examination. No mere imaginary danger will be enough to justify it; but a well-grounded belief, founded upon such information or observation as would be calculated to excite fear of bodily harm in the mind of a reasonable person under like circumstances, will justify it.
After a careful examination of the vast amount of testi
The second question to be considered is, are the defendants entitled to be discharged or let to bail ? The constitution, as well as the criminal code of this state, provides that persons charged with capital offenses shall not be admitted to bail where the proof is evident, or the presumption great. The evidence in this case is voluminous, and conflicting on many questions. On one question, however, there is no dispute: three persons were killed, under such circumstances as to constitute murder, if unexplained, and some others were wounded. As far as defendants are concerned, no explanation has been given; but in view of the fact that the question of the guilt or innocence of the petitioners must be submitted to a jury for their determination, we express no opinion in the case further than to say that on the evidence submitted t-o us the petitioners must be held for trial; and under all the circumstances, as we now understand them, (necessarily submitted iu an unsatisfactory way,) they are entitled to be let to bail.
By the Court: It is so ordered.