12 S.E. 268 | N.C. | 1890
Lead Opinion
If the Judge, upon the investigation of the evidence on a petition for habeas corpus, adjudges that there is or is not probable cause, and admits or refuses to admit to bail, no appeal or certiorari lies, either in favor of the State or the petitioner. Walton v. Gatlin, 60 N. C. (1 Winst.), 318; State v. Miller, 97 N. C., 451. The quantum of evidence and the number of witnesses to be examined must necessarily be left also to the sound discretion of the Judge who hears the writ, and his action in that regard cannot be reviewed. When, however, on the return of the writ, the Judge declines to hear evidence because an indictment for a capital offence has been found against the petitioner, this presents a ruling of law which the petitioner is entitled to have reviewed by this Court. The statute nowhere - provides for an appeal in such case, but the Constitution, Art. 1, § 18, guarantees the writ of habeas corpus; and if such ruling has the effect to • deny its efficacy to anyone who, on investigation of the evidence, might have been entitled to bail, this Court, by virtue of the Constitution, Art. 4, §8, has “the power to issue any remedial writ necessary to give it a general supervision and control over the proceedings the inferior Courts.” It appearing that, upon the return of the writ, the Judge declined to hear evidence or investigate the charge, the writ of certiorari should issue, that we may be further advised concerning the matter. Walton v. Gatlin, supra; Biggs, ex parte. 64 N. C., 202; State v. Jefferson, 66 N. C., 309.
A certified transcript of the record being in Court, by consent it is docketed and taken as a return to the certiorari. From such transcript it appears that, on the return of the writ, the Judge declined to hear any testimony, upon the ground that the true bill was probable cause. The question, then, is whether the finding of a true bill either deprived the Judge of the power to investigate the evidence and admit the prisoner to bail, or was so conclusive of the fact that there was probable cause as to deprive a citizen of the
The Judge, having refused to hear the evidence and to pass upon the right of the prisoner to be admitted to bail, committed error, and it must be so adjudged. Lynch v. People, 38 Ill., 494; Commissioners v. Rutherford, 5 Rand (Va.), 646; Lumm v. State, 3 Port. (Ind.), 293; People v. Cole, 6 Park Cr. Rep., 695; 2 Hawks. P. C., ch. 15, §79; Hurd Habeas Corpus, 439; Churoh on Habeas Corpus, 540. There are other cases, as where the prisoner is so sick as to be in danger of his life, or the prosecution is unreasonably delayed, and the like, in which the prisoner has been let to bail after indictment found. Kirk’s case, 5 Mod., 454; United States v. Jones, 3 Wash. C. C. Rep., 224; Bacon’s Abr. Báil, Cr. Cas. D; Hurd Habeas Corpus, 445. In a recent historical case Jefferson Davis, after an indictment found for treason, was admitted to bail by the United States Court. But these and like cases stand on a different footing from the present application, and are only authority that a habeas corpus may lie after indictment
Where the charge is of a capital felony, which is prima facie not bailable, the Courts are very slow to admit to bail, for there is shrewd authority that “ all that a man hath will he give in exchange for his life,” and after indictment found it is only in a clear case and with great caution that a Judge will admit to bail, for, while the indictment is no presumption of guilt on the trial before the petit jury, it is otherwise in the application for bail. The presumption then is in favor of the correctness of the action of the grand jury, and it may be that testimony was before them which is not produced before the Judge. We merely decide that the finding of the true bill does not preclude the application. Of course, after indictment found, the Judge cannot absolutely discharge the prisoner in any case, however clear a case of innocence may be made out, but must require his appearance at the next term of Court.
The Code, § 1626, gives the prisoner the right to apply for the writ to any of the Justices of the Supreme Court, or any Judge of the Superior Court. Section 1626 (4) requires an averment in the petition that the legality of the restraint has not been already adjudged upon a prior writ of habeas corpus. As this judgment annuls and sets aside the ruling of the Judge below, there is now no former judgment which passes upon the petitioner’s right. He can, therefore, apply, de novo, to any one of the Judges, as authorized by the statute, to whom he could have applied in the first instance. This is not an appeal from a Judge, as Judge holding the Courts of any district, nor is it a case where the error must be corrected by the individual Judge who committed it. Therefore, no procedendo issues. The judgment below denying the right to have witnesses examined is overruled, and the proceedings are remanded to the Superior Court of Durham County, to the end that the petitioner have leave to
The value and efficacy of this writ depends largely upon the promptness with which it is heard. It has, therefore, been suggested that one reason why an appeal or certiorari should not lie is because of the necessary delay which would be caused thereby. There might be some force in the suggestion if the appeal or certiorari were granted on behalf of the State and the petitioner should lie in jail pending .the hearing here. This can hardly be urged, however, when the effect of the decision here may be to grant the prisoner the privilege of bail, of which, otherwise, he would be entirely deprived. Besides, the Court has the power to advance such cause and hear it at any time out of its order. Rule 13.
The statute (Acts 1887, ch. 41), which is also Rule 48 of this Court, requires the Clerk of this Court, on the first Monday in each month, to certify down all opinions which shall have been on file ten days. We do not understand that this Court is thereby deprived of its power to have opinions, when it deems proper, certified down at an earlier date. On motion of petitioner’s counsel, it is therefore ordered that the Clerk of this Court forthwith certify this opinion and decision to the Superior Court of Durham County.
Dissenting Opinion
(dissenting): I think the law of this State, in respect to bail, especially as to persons charged with and committed to prison to answer for capital crimes, as it prevailed before the adoption of the present Constitution, has not been materially, if at all, modified, by statute. The present* Constitution simply declares that “ excessive bail should not be required.”
The statutory provision (The Code, §1161) cited in the opinion of the Court and interpreted as having some modi
At common law all persons charged with capital felonies were, before conviction, bailable, but the Constitution of this State of 1776, section 39, modified that law by providing that “all persons shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident or presumption great.” That Constitution, however, including the provision just cited, has been superseded by the present Constitution, which contains no such provision. Hence, the right to bail in capital cases is left as at the common law. The Code, § 641. By that law bail might be granted in such cases only by a high judicial officer, upon thorough scrutiny of the facts and great caution. Sir William Blackstone says: “ It is agreed that the Court of King’s Bench (or any Judge thereof in time of vacation) may bail for any crime whatsoever, be it treason, murder or any other offence, according to the circumstances of the case. And herein thé wisdom of the law is manifest. To allow, bail to be taken commonly for such enormous crimes would greatly tend to elude the public justice; and yet there are cases, though they rarely happen, in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has, therefore, provided one Court, and only one, which has discretionary power of bailing in any case; except only, even to this high jurisdiction, and, of course, to all inferior ones, such persons as are committed by
The indictment for a capital offence raises a strong presumption of the pi’isoner’s guilt, and he ought not to have bail unless he alleges and proves to the satisfaction of the Judge that he is not guilty, except in the exceptional cases mentioned. The law intends that persons solemnly accused of capital crimes, when the evidence tends strongly to prove their guilt, shall not have opportunity to flee and escape justice; they must, therefore, be detained in jail, not to punish them, but to the end that they may certainly answer for the crimes charged against them. Their rights should be carefully observed, but the rights of society and the State should be observed as well. If, in possible cases, the prisoner is not guilty, when the evidence proves his guilt to the satisfaction of the Court, this is his misfortune, and he must submit to the inconvenience and distress occasioned thereby until, in the course of the law, he shall be tried. Until the adoption of the present Constitution it was understood to be the law of the State that after indictment for a capital offence a prisoner was not bailable. This was so by reason of the provision of the Constitution of 1776, above recited. It was, therefore, that the late Chief Justice RuupiN said, in State v. Mills, 2 Dev., 420, “for, after bill found, a defendant
I-do not concur in the disposition made of this case The writ of certiorari allowed by this Court in contemplation of law was directed to the Judge before whom the habeas corpus proceeding was pending, and who'heard the same, commanding him to certify to this Court the whole record of the proceeding, to the end it might review his action and correct his alleged errors. By consent, the case was treated as if he had done so. Upchurch v. Scott, 2 Winst., 137; Cox v. Gee, ibid., 131; Johnson v. Mallett, ibid., 125. The writ put this Court in relation with him as Judge, and, as it decided there was error, its decision should have been certified to the Judge below, directing him to proceed to hear and dispose of the proceeding before him according to law-. But by order of this Court the proceeding is left incomplete and unfinished, and the petitioner is told simply that he'may file another petition before some other Judge. It seems to me that this course is at least disorderly, and not warranted by principle, precedent or practice, nor is there necessity for it. This Court had no relation in the case with the Superior Court of the county of Durham. The writ of certiorari was not directed to that Court, nor did it have jurisdiction of the matter. It is true that habeas corpus proceedings are largely summary in their character, but they should have logical order, consistency and completeness. It might not be convenient for the Judge below to further hear and dispose of the case. If so, he might make an order transferring it to another Judge, to be heard and disposed of by him. A
Per' Curiam. Error.
Lead Opinion
(MERRIMON, C. J., dissented.)
If the judge, upon the investigation of the evidence on a petition for habeas corpus, adjudges that there is or is not probable cause, and admits or refuses to admit to bail, no appeal or certiorari lies, either in favor of the State or the petitioner. Waltonv. Gatlin,
A certified transcript of the record being in court, by consent it is docketed and taken as a return to the certiorari. From such transcript it appears that, on the return of the writ, the judge declined to hear any testimony, upon the ground that the true bill was probable cause. The question, then, is whether the finding of a true bill either deprived the judge of the power to investigate the evidence and admit the prisoner to bail, or was so conclusive of the fact that there was probable cause as to deprive a citizen of the right to have the cause of his detention, and his right to be admitted to bail, inquired into by (936) virtue of this great writ of right. We think not. The grand jury, it must be remembered, hear the State's witnesses only, and only such of them as may be sent before them by the solicitor, or by order of the court. The Code, sec. 1741. It may happen, and often does, that, upon hearing the State's evidence only, the conviction is ample to justify the grand jury in finding a true bill for murder; yet, upon an examination of the witnesses for both sides by a judge, upon the writ of habeas corpus, it may appear that there was no probable cause as to the charge of murder, but that it is a case of manslaughter, and, therefore, bailable, or excusable homicide, or it may be that there is no probable cause, upon the whole evidence, that the defendant was the guilty party. The defendant should not be deprived of this right guaranteed to him by the Constitution, and be compelled to lie in jail, probably for months, when an intelligent judge, upon hearing the whole evidence, the benefit of which is denied to a grand jury, might properly adjudge that there was no probable cause as to the capital offense, at least, and admit the defendant to bail. we are aware that, in S. v.Mills,
The judge, having refused to hear the evidence and to pass upon the right of the prisoner to be admitted to bail, committed error, and it must be so adjudged. Lynch v. People,
Where the charge is of a capital felony, which is prima facie not bailable, the courts are very slow to admit to bail, for there is shrewd authority that "all that a man hath will he give in exchange for his life," and after indictment found it is only in a clear case and with great caution that a judge will admit to bail, for, while the indictment is no presumption of guilt on the trial before the petit jury, it is otherwise in the application for bail. The presumption then is in favor of the correctness of the action of the grand jury, and it may be that testimony was before them which is not produced before the judge. We merely decide that the finding of the true bill does not preclude the application. Of course, after indictment found, the judge cannot absolutely discharge the prisoner in any case, however clear a case of innocence may be made out, but must require his appearance at the next term of court. *645
The Code, sec. 1626, gives the prisoner the right to apply for the writ to any of the Justices of the Supreme Court, or any judge of the Superior Court. Section 1626 (4) requires an averment in the petition that the legality of the restraint has not been already adjudged upon a prior writ of habeas corpus. As this judgment annuls and sets aside the ruling of the judge below, there is now no former judgment which passes upon the petitioner's right. He can, therefore, apply, de novo, to any one of the judges, as authorized by the statute, to whom he could have applied in the first instance. This is not an appeal from a judge, as judge holding the courts of any district, nor is it a case where the error must be corrected by the individual judge who committed it. Therefore, no procedendo issues. The judgment below denying the right to have witnesses examined is overruled, and the proceedings are remanded to the Superior Court of Durham County, to the end that the petitioner have leave to renew his application, if so advised. There being no prior adjudication preventing a new application (939) by the petitioner, we cannot interfere with his statutory right to select the judge to whom he shall apply.
The value and efficacy of this writ depends largely upon the promptness with which it is heard. It has, therefore, been suggested that one reason why an appeal or certiorari should not lie is because of the necessary delay which would be caused thereby. There might be some force in the suggestion if the appeal or certiorari were granted on behalf of the State and the petitioner should lie in jail pending the hearing here. This can hardly be urged, however, when the effect of the decision here may be to grant the prisoner the privilege of bail, of which, otherwise, he would be entirely deprived. Besides, the court has the power to advance such cause and hear it at any time out of its order. Rule 13.
The statute (Laws 1887, ch. 41), which is also Rule 48 of this Court, requires the clerk of this Court, on the first monday in each month, to certify down all opinions which shall have been on file ten days. We do not understand that this Court is thereby deprived of its power to have opinions, when it deems proper, certified down at an earlier date. On motion of petitioner's counsel, it is, therefore, ordered that the Clerk of this Court forthwith certify his opinion and decision to the Superior Court of Durham County.