| Ill. | Apr 15, 1865
The Circuit Court might well have heard the evidence and inquired into the grade of the alleged offense, with the view of allowing or refusing bail, as might have appeared proper upon the facts. The mere fact that a grand jury has found an indictment for murder, does not preclude, an inquiry into the facts of the case, to ascertain whether the offense may not be of such grade as to entitle the prisoner to bail.
Should an innocent man be indicted for murder, as is sometimes done, it would be gross injustice to require him to lie in jail, perhaps for months, until a trial could be had, and without any opportunity of asking an investigation of the case with the view of obtaining bail.
We know that a party may, under an indictment for murder, be convicted of manslaughter, and doubtless grand juries are often controlled by that consideration, in refusing, as is generally the case, to find indictments for the lesser offense. It would be very hard, when the law declares that if the offense be of a lower grade than murder, it shall be bailable, that the accused should be concluded upon that question, until final trial, upon the mere finding of a grand jury, which is necessarily based, for reasons of public policy, upon a mere ex parte examination.
And while we think an inquiry into the facts should always be made upon a proper application of the prisoner, for the purpose indicated in this motion, we need hardly suggest that in view of an indictment • having been found for the higher offense, courts and judges should proceed with great caution in their examination of the facts, that the prisoner may not be improperly admitted to bail, and only in case he is clearly entitled to such relief.
The application may be made upon motion, as in this case, in term time, or by habeas corpus in term time or vacation.
We can'not entertain the writ of error, however, in this case, for the reason that the refusal of the court below to hear evidence upon the application for bail is not such a final judgment as may be brought here for review.
Writ of error dismissed.