The Portland daily press., 1868-07-22
The Privilege of Bail in Capital Case

The Privilege of Bail in ca piiaI Gases.
The following is the opinion of Judge God
dard, of the Superior Court, rendered June
20. upon the petition OF Philip W. Sawyer.
Petition in habeas corpus:
1t appears that this Petitioner has been i'm
prisoned in the County Jail since June 10,
upon a warrant of the Judge of the Mu-
nicipal Court OF Portland, to await his trial
at the next term of the Supreme Judicial
Cou-t, upon charge of rape, all which l
find "plainly and specially expressed" in the
mittimus, copy of which is produced by Pc
titioner and is made part of the jaior's re-
turn.
The petitioner now asks to be admitted to
bail, to which the County Attorney objects
that this Court has no jurisdiction of the
case, the same having been adjudicated by a
magistrate OF competent jurisdiction, which
adjudication is conclusive and final, and the At
torney claims that petitioner be relnanded to
prison without further inquiry into the case.
1t is clear that petitioner is not entitled to
this writ as of right, being confined in pris-
on on suspicion of felony plainly and special
ly expressed in the warrant of commitment"
R. s., Chap. SO Sec. 5. .......
Examining magistrates are directed to pro-
ceed thus: 9 If it appears on the whole ex-
animation that an offence has been commit
ted, that there is probable cause to charge the
accused, and the offence is bailable, and suffi-
cient bail is offered, it shall be taken and the
accused discharged; but if it is not bdilable,
or no sufficient bail is offered, the accused
shall be committed to prison to await a trial"
h. S., Chap. 1873, Sec. IL.
Amendment III of the Constitution de-
clares that mo person before conviction
shall be bailable for any of the crimes, which
now are, or have been denominated capital
offences since the adoption of the constitu-
ton, where the proof is evident or the pre-
sumption great, whatever the punishment Of
the crimes may be-"
Rape has been denominated capital Of
fence since the adoption of the constitution,
being punishable with death until 1928.
The mittimuS, after stating the offence
charged in the complaint in appropriate
words, adds: And said Court having de-
cided that there is probable cause to believe
said Sawyer guilty, after full hearing there
on, by the consideration OF said court he is
ordered to be committed to the States Jail in
said County so that he may be had before the
Supreme Judicial Court, on the last Tuesday
of July next" &c.
This seems to meet the requirements of the
statute last referred to, unless there may be
an omission fully to set forth that it "appear-
ed that an offence had been committed"
accused" the description OF an offence "not
baable," and the 6 committal OF the accused
to prison to await trial." are each plainly
and specially expressed"
Yet it nowhere appears that "the proof was
evident or the presumption great" or that
this question was ever presented or adjudicat-
ed upon by The Judge OF the Municipal Court.
But it is only "when the proof is evident or
the presumption great" that bail is to be reIu-
Sed, even in capital cases.
Does not the statute which guides the ex-
amining magistrate tall short OF the constitu-
ton? For il there is .prObdble cause, only
ito charge the accused" and "the offense IS
not bailable" the statute peremptorily requires
that she shall be committed"
= May there not be probable cause to charge
an accused" and yet the proof" not be "evi-
dent or the presumption great?" If not,
these words in Amendment III. would seem
devoid OF meaning, since where there is no
probable cause" there can be no commit
ment.
And if there may be such case, viz, where
there is probable cause" without "evident
proof or great presumption" there the statute
would seem to require more than the amend
ment justiies.
The only view which occurs to my mind
whereby the law and the Constitution may
be harmonlzed is, that the examining magis-
trate Is Dy the statute deprived OF jurisdiction
OF the question whether the proof IS evident
or the presumption great" leaving the deter
mination OF this issue solely to higher court
Ii this view is correct, the question at issue in
this hearing has not been adjudicated upon.
But, independently of this, it is objected
''that if on inspection of the warrant of
commitment it appears to the court that the
petitioner is thereby lawfully imprisoned a
writ shall not be sranted."-R. S. Chan. 90,
Sec. s.
This provision is however modified by Sec.
33 OF the same chapter: "Nothng in this
chapter shall be construed to restrain the
Supreme Judicial Court in term time, or any
justice thereof in vacation, from bailng per-
son Tor any offence, when the circumstances
oil the case require it, except persons commit
ted by the Governor and Council, Senate, or
House of Representatives, for the causes men
toned in the constitution" The act of Feb.
IA, 1868, Chap. Isl, Sec. 5, confers on this
court concurrent jurisdiction with the Su-
preme Judicial Court in this County.
The writ Of habeas corpus had been in Eng
land, from the time of Magma Charta, a matter
OF right, but generally and fatally disregarded
in cases relating to the government, where in
fact it was not needed.