Supreme Court. Columbia Special Term.

August, 1868.

*Hogeboom,*Justice.

#### The People *v.*George W. Cole.

In deciding upon an application to bail, on an indictment for murder, the fact that the prisoner has been once tried, with a failure of the jury to agree, is a proper one to be shown, as bearing upon the question of the probable guilt or innocence of the prisoner.

A party applying to be bailed is not confined to what appears upon the record. He may show extraneous facts, such as those relating to the presentation of the indictment, the payment or discharge of a fine, his suffering by imprisonment, and its effect upon his health, &c.

The object of imprisonment before conviction is not to punish the prisoner, but to secure his attendance at the trial. If that can be effected as certainly by bail as by imprisonment, the prisoner, in almost any case, should be bailed.

In the case of an indictment for murder, as in other cases, whether bail shall be taken rests entirely in the discretion of the court. While, as a general proposition, in cases of murder, the temptation to flee from jus*688tice is supposed to outweigh all inducements to remain, growing out of pecuniary obligation, yet circumstances showing a want of consciousness of guilt or of probability of conviction, may properly be shown as reasons for admitting to bail.

On an application to bail, the affidavits of jurors are competent evidence to show the disagreement of the jury on a former trial.

In a case where it appeared that on a trial for murder the jury had disagreed, six being in favor of acquittal and six for conviction of murder, the latter being willing to find a verdict of manslaughter in the third degree, it appearing that a second trial could soon be had, and that the health of the prisoner was not suffering materially by imprisonment, the court, after reviewing, in connection with these facts, the other circumstances of the case, refused to admit to hail.

. The prisoner, who had been indicted for murder, and once tried, when the jury did not agree upon a verdict, was brought up under a writ of *habeas corpus*for the purpose of being bailed. Oh the return of the writ, it was objected, by the public prosecutor, that copies of the affidavits on which the writ of *habeas corpus*was allowed had not been served upon the district attorney, and the hearing of the application was postponed one week tó enable the counsel for the prisoner to serve such papers.

At the adjourned day, it was objected that the affidavits could not be read, on the ground that no evidence was admissible except the indictment, and the proofs on which it was found, or the evidence taken under it, and it was further objected that the affidavits of jurors were not admissible to show that they had failed to agree on a verdict.

In deciding upon the objections made, after the questions had been discussed by counsel, the judge said as follows :

The cases to which the district attorney has referred do not seem to me to be entirely parallel to the present case. They are cases occurring before indictment, or after indictment and before trial. It may be, it probably is, true, that in reference to the abstract question of either the guilt or the innocence of the person involved in the trial *689of the indictment itself, there may be no other evidence admissible except the indictment and depositions which lie at the foundation of it. But, I think, this is a different question, and depends, at least to some extent, upon different considerations. Now, the prisoner has had a trial— at least that is a proposition which the party proposes to prove. The prisoner has had a trial. If that trial had , eventuated • in a verdict, of course it would be admissible to show the character of that verdict, either by record evidence, or, if that were incapable of being produced, by such other evidence as the nature of the case allows.

It is said there has not been a verdict, and the jury have disagreed upon the merits of the case—have failed to unite in a verdict of guilty or a verdict of acquittal. And the first question is, whether that fact has any bearing whatever upon the question of bail. If it has, some means ought to be allowed to bring the evidence before the court. I think, upon several adjudged cases, the fact itself is of some importance in its bearing upon this question now before the court. It bears upon the question of the probable guilt or innocence of the prisoner. Presumptively, for the purpose of bail and before trial, *that*is established by the indictment, although, I think not even *then, absolutely*so, so as entirely to preclude an inquiry into the propriety of bail. After all, it seems to me to be the law, as well as just, that in cases of that kind, the matter should be left to the sound discretion of the court.' But here a trial has been had, and it is proposed to prove that a conviction was unable to be ' had, after twenty-four or forty hours’ effort on the part of the jury; and that, at. the end of that time, and finally, the jury stood six for acquittal and six for a verdict for a crime which would entitle a party ordinarily to bail.

Now, it seems to me that fact should be permitted to be brought before the court. If it had been entered upon the minutes of the court, I do not see why the prisoner *690could not avail himself of it. That has not been done. But these extraneous facts of various kinds are allowed to be introduced in evidence, as bearing upon applications of this kind, as has been referred to. Facts in regard to the presentation of the indictment, the fact of payment or discharge of a fine; the fact of suffering by imprisonment, the effect "upon the health of the prisoner; the probability upon the whole that a crime has been committed. It is said, and it is true, that an indictment is presumptive, and perhaps, for the time being, conclusive evidence that a crime had been committed. But this case has been subject to the test of judicial investigation, and it has resulted in an inability, upon the part of the jury, to. arrive at a unanimous verdict. Now, "ought that to have any bearing upon the question of bail? . I can conceive that in many cases it should.have. I "recollect, that in several cases, it has been thought to be a fact bearing upon the question of the propriety of bail. :If there is an unlikeli- . hood of a conviction, there would be an improbability of his attempting to escape trial. The object of the imprisonment is not to punish the prisoner, but to secure his attendance at the trial. If that could be effected as certainly by bail—as well by bail as by imprisonment—almost any prisoner should be bailed. Now, that should have a bearing. If a jury are unable to agree upon a verdict of guilty, is" there not some probability that the party may not ultimately be convicted of the high crime for which he stands charged, and may be more likely to be only con- • victed of a crime for which bail may be properly taken. I think" so; I think evidence of this kind is admissible. The' greater doubt that I had, arose upon the mode by which the fact was intended to be proved; and that is the greater difficulty in my mind; that is, whether the affidavits of the jurors themselves are admissible. This question is whether they may not be said to be of a character like those which tend to impeach their own verdict. *691Those are inadmissible ordinarily, that is, those affidavits of jurors which tend to impeach their own verdict, for irregularity or misconduct in the jury themselves. This may be said not to be entirely analogous, for here was no verdict. As I understand it, the object is not to go, at length, at least, into the details of the discussion before the jury, to see upon what grounds they favored a verdict of acquittal or conviction, but, generally to see the fact of how the jury stood, one way or the other, upon this general question of guilty or not guilty—not necessarily to call names, not necessarily to enter into the views of the jurors, further then to express the general result, but simply for the purpose of declaring how they stood, so as to vindicate the probability of conviction or acquittal upon a future trial. To that extent, I think the evidence admissible. If proved by a constable or some officer, I think, the mode would be admissible. I am not entirely clear that it is susceptible, with propriety, of being proved by jurors themselves. I shall, therefore, admit the evidence for the present, reserving the question till hereafter, whether the affidavits of jurors may be received, of this kind, or whether evidence, such as can be got from the constable or other parties, are the means by which such facts can be shown. I will, therefore, hear the affidavits, subject to the objection, and reserve the question of admitting or excluding them, to be decided hereafter. Affidavits were then read on both sides, and the case was argued by

*Wm. J. Hadley*and *Amasa J.*Parker, for the prisoner.

*Henry Smith*(District Attorney), for the people.

*By the Court,*Hogeboom, J.

The prisoner was, on a previous day, brought before the court on a writ of *habeas corpus,*sued out on behalf of the defendant, to inquire into the cause of his detention, and to procure his discharge on competent bail. He is now held before this court by *692the officer having him in charge, awaiting a decision upon this application. By the return to the writ and other papers, it appears that the prisoner, in June, 1867, was indicted, in Albany county, for the wilful murder of L. Harris Hiscock; that the indictment was moved for trial at the Albany Oyer and Terminer, held in November, 1867; that the trial was postponed on the motion of the defendant, was again moved at the Oyer and Terminer, held in January, 1868, but the prisoner not being ready, the court was adjourned until the 20th day of April, 1868, at which time the trial commenced, and was concluded on the seventh day of May afterward, resulting in a disagreement of the jury. At the Albany Oyer and Terminer, held on the third Monday of May, 1868, both parties appear to have been ready for, or willing to go to trial, but for reasons not very fully disclosed, and apparently growing out of the convenience of the court, the trial was not then proceeded with, nor an adjourned Oyer and Terminer appointed, as had been suggested, and was apparently satisfactory to both sides. Since that time, some effort has been made, thus far unsuccessful, to procure a judge who should be able to hold an extraordinary session of the court, under appointment from the Governor, prior to the next regular session of the court, on the second Monday of November next, and the district attorney expresses the belief that such efforts will yet be successful, but the counsel for the prisoner intimate that he will probably now not be ready for trial until the November Oyer' and Terminer, and mainly, as I understand them, for the reason that the brother of the prisoner, Senator Cole, of California, is just about going home, and cannot conveniently return until near the time of • the re-assembling of the United States Congress.

This recital of facts tends to show that there has been no lack of due diligence on the part of the prosecuting officer in moving the trial of the prisoner, and that he is *693even now.ready to aid in procuring the appointment of an extraordinary session of the court, if it shall be desired by the prisoner, or deemed necessary for the purposes of justice. I have the same disposition, and though originally disinclined, on account of temporary ill-health and other engagements, to undertake the extraordinary labor of such a court, and much preferring that another judge should be assigned to that duty, yet, as the one who is appointed to hold the November Oyer and Terminer, I should not feel at liberty to decline presiding at an earlier and extraordinary session of the court, if the Governor should deem it most proper to appoint me to that duty. There will, therefore, in all probability, be no difficulty in-procuring an early trial of the indictment, if it shall be desired by the prisoner, or be consistent with his proper preparation of his case. Hence, so far as his application is grounded upon the great lapse of time which has taken place since his original arrest, and will take place before he can possibly be retried, I do not think it ought to be granted, because, beyond what is inevitably incident to all judicial proceedings, it has arisen and is likely to arise, for the most part, from his own action. If it should hereafter become apparent that any undue delay is caused by the public authorities, it may furnish reason for a favorable consideration of a renewed application to be discharged on bail.

It is further claimed that the physical condition of the prisoner requires his liberation on bail. But I do not see that this condition is substantially different from what it has heretofore been, or that his imprisonment has resulted of itself in any serious detriment to the prisoner’s health. This part of the application is not very strongly supported. It rests mainly on a single allegation in the petition of the prisoner for this writ, that in or about the year 1862, while serving in the army, he received a severe and dangerous internal injury, from which he has ever *694since suffered and is still suffering, and that, in his judgment, his physical condition renders his discharge from imprisonment upon bail absolutely necessary. The latter clause of the sentence is the mere expression of an opinion, which, however sincerely entertained or carefully formed, must, I think, yield to the preponderating evidence that his confinement has not seriously affected his health or so decidedly impaired the same beyond what it otherwise would have been, as to give cause for serious apprehension, or to demand as a matter of humanity or duty the entertainment of the application, especially upon that ground.

The only remaining question for consideration, and it is that upon which the application is principally founded, is,' whether the occurrences or the result of the previous trial give such a character to the transaction as justify or require the admission of the prisoner to bail. The right in the court to admit to bail, even in cases of murder, must be conceded. It is a matter left to the discretion of, the court. . The object of imprisonment previous to trial is not punishment, but the security of the person of the alleged offender to await the judgment of the law. In ordinary cases this object is supposed to be attainable by the exaction of sufficient and reasonable bail. But, as a general proposition, in cases of murder, as conviction of the offense results in taking the life of the offender, the temptation to flee from justice is supposed to outweigh all inducements to remain growing out of pecuniary obligation, no matter to what amount. And often, perhaps generally, though not always, in the case of consciousness of guilt or of probability of conviction, this is so. This probability may be naturally supposed'to decrease, though it is not always so, as the efforts to convict prove unavailing. Hence, the result of a previous trial is very proper to be considered in determining the probability of a future conviction, and in determining also the probability of the' prisoner’s guilt. It is proper, therefore, to take into con*695sideration all the circumstances—the circumstances of the transaction, and the legitimate inferences to be derived from them, the evidence and proceedings upon the trial, the disagreement, as reflecting' probable light upon the real character of the offense, and the ultimate result of a new trial.

In this we start with an indictment against the prisoner,deliberately presented and perseveringly prosecuted for one of the very highest crimes known to the law. This, of itself, is usually regarded before trial as presumptive evidence of guilt, sufficiently strong to justify a refusal to bail. Then we have, in the conceded or undenied facts of the transaction, not only strong evidence of the act of killing, but that the act was done with premeditation, provided the prisoner was not insane, or under the temporary dominion of a sudden and uncontrollable frenzy. The prisoner having previously provided himself with a pistol and loaded the same, proceeded to the office of a principal hotel in Albany, and, without any previous admonition or conversation, or any provocation at the time other than such as might be supposed to arise from the sight of the alleged destroyer of his domestic peace, shot the deceased instantly dead. I,have examined the testimony taken on the trial, with the care required by its importance. As I may possibly be required to preside' on the trial hereafter to be had, I will not venture to express an opinion upon its legitimate, effect. It is not, however, improper to say that the charge of the able and learned judge who. presided on that trial (which I have also read with the attention due to the source from which it proceeded), tends strongly to the conclusion that the prisoner is guilty of murder, unless saved therefrom by irresponsibility for his act growing out of mental aberration.

This, in substance, must be the main defense on the trial, for whatever sympathy a properly constituted mind must necessarily and inevitably indulge in reference to. *696the prisoner, growing out of circumstances alleged by popular rumor to be connected with his domestic history, the very existence of these circumstances is a matter of controversy, and, even if true, they probably, so far as gathered from the case as to the period of their supposed occurrence, can never be legitimately introduced in evidence, as in themselves an entire and absolute justification for the act of killing, or otherwise than in reference to the effect which a belief in their supposed occurrence produced, or would naturally produce, upon the conduct of the prisoner. It is true, the defense of insanity or insane impulse was not wholly founded upon evidence of this character, but upon a' supposed hereditary or family tendency in that direction, and upon a derangement of bodily and mental health and functions, occasioned by injuries received and sufferings endured during service in the late war.

The precise effect of these upon the mind of the pris-' oner was the subject of grave controversy on the trial, as well as was his actual mental condition at the time of the commission of the alleged murder and immediately previous thereto. In the most favorable aspect of this evidence for the prisoner, it may, I think, be said to have left the case not wholly free from doubt. Assuming this to be so, and looking at the clear and unqualified evidence to which I have heretofore referred upon other facts of the case, will not public justice be better subserved and the certainty of the execution of the judgment of the law be more effectually secured, by keeping the prisoner in confinement for a short time longer?

The jury on the previous trial disagreed, and this is put foward as a strong reason for bailing the prisoner. The circumstances and mode of their disagreement are sufficiently established. I ■ admit the affidavits of the jurors heretofore conditionally read upon that subject. From •them it is apparent that throughout (unless possibly upon *697the last ballot), six of the jurors were in favor of acquittal, and six in favor of conviction of the crime of murder, though the latter were willing to adopt a verdict of manslaughter in the third degree, if it could be unanimous. The opinions of all these jurors, arrived at after a protracted trial, after great deliberation, and under the charge of an enlightened court, are entitled to great respect, but are nevertheless not conclusive. Taking them as they are, they leave the matter in great doubt. If six of them were in favor of acquittal, six of them were also in favór of conviction, and if the result of another trial should, as it may possibly do, support the opinion of the latter, it might well be doubted whether a discretion, exercised in favor of bailing the prisoner, was judiciously exerted.

As to the probable result of the trial which is hereafter to take place, or as to what its actual result should be, it is unbecoming in me, perhaps, to express an opinion. On the question of bailing the prisoner, that does not seem to me to be precisely the question. It is not precisely whether a second jury is likely to convict, for a jury *may*be swayed from their duty of conviction or acquittal; nor precisely whether the prisoner is guilty of the offense charged, for a judicial tribunal on such an occasion as this cannot be asked to make so critical an examination of the evidence in the case; nor precisely whether, judging from the mental and moral characteristics of the prisoner, he is likely, notwithstanding the very grave character of the accusation, to submit himself, if allowed his freedom, to the judgment of the law; but whether, on the whole, the line of safe precedent is not better followed, and the cause of public justice more securely protected by refusing than accepting bail, by confining than discharging the prisoner—whether the gravity of the accusation is not such, supported as it is by an indictment deliberately found, and by much evidence on a trial already had, as well as by the opinions of six jurors, after half a month’s *698protracted investigation, as to make it safer and better, on the whole, for the general interests of justice and the protection of the whole community, that the defendant should submit to a little longer confinement, which is inseparable, to a greater or less extent, from all criminal accusations, than that a temptation to escape from the vengeance of the law in a possible contingency should be afforded, and, at the least, a possible misconstruction of an act of judicial discretion should occur.

It is proper to do all in. my power to prevent such misconstruction, and, therefore, to say that, while a decision to admit to bail would furnish no just ground for an inference in favor of the acquittal of the prisoner, so a contrary conclusion should not be construed as evincing any opinion of the court in favor of conviction, but simply as a precautionary measure to guard the just rights of the public, while productive of no real detriment to the legal rights of the accused party.

On the whole, after the best consideration I have been able to give to the case, I am of opinion that the application to admit the prisoner to bail should be denied, and that he should be remanded to the custody of the sheriff of the county of Albany.