The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1870-11-17

I 20 buSO NH Mu1Ay8AB OF TIE EWA4CDEt W uChCA-
mine as to guilt or Innocence Thar, say
they. Is the province Of the jury
| Any discussion we might make. or any
| opinion we might come 20 on that subject
might have an injurious effect on the jury
| trial.
$50 much depends on the manner oil
witnesses. their seeming bias or fairness
that cannot be brought before this court
(which should yet have material bearing
on the weight of evidence" that we would
| pause long before we would disturb the de-
| cisions of the Circuit Judge where the
weight of the evidence depened on the cred
| Utility of witnesses-f0r he had far. very far
better means of detecting the false. biased.
prevaricatiRg witness. than this conrt -
means indeed, which by the secondary chan
mel ola bill of exceptions cannot be brought
before this court.
We are exercising over this writ of error
| purely Fevisory, correctional jurisdiction.
We have no larger Jurisdiction. or discre-
tlon TO bail-where a case is before us on
n writ of errOr-than the Judge, or Court,
whose Judgment is before US. Indeed.
there liz nothing in the law to warrant us in
| dealing with such case, in any sense. ex-
ceptional. We must regard the judgment
as presumptively right, until error Is
shown.
1t appears in this case that the witnesses
| were, in important particulars, conflicting.
If not contradictory; that necessarily the
question of credibility arose-and- assuming
that question as settled in the mind of the
Judge In one way-there are very strong
inculpating facts Touching these matters.
the Circuit Judge had tar better opportuni-
ties, and was in more favorable circumstan-
ces to come TO a safe, reliable and just opin-
ion. than this Court.
The grand jury who had the advantage of
a personal examination OF the witnesses,
ex-parte TO be sure, have charged the party
with murder. The Circuit Judge, with the
like examination of such witnesses as were
brought before him, has denied bail.
The facts in the record do not raise the
question of the degree of the crime-mur1er
or manslaughter. On that subject there
can be no doubt And as manslaughter is
included In an Indictment for mHrder--and
conviction of the lesser Offense can be
sustained under a charge of the greater
there might be great propriety in this court
looking ut testimony with the view of as
certainihg what grade OF the crime the ev-
| idence fixes.
We suppose the main object ofallowing a
review at all. was to correct the errors of
law which might materially prejudice the
| relator. rather than TO estimate and criti-
else the testimony as to its weight and GRIM
| mating effects. If the Circuit Judge ex-
cludes testimony material to the defense if
| he has clearly mistaken the grade of the
| felonious homicide to the disadvantage of
| the prisoner; ii he holds party restrained
| by arbitrary power or by private force or
| 10y the sentence or act Ola tribunal without
| jurisdiction or if he refuses bail on testi-
mOny too weak to raise great presumption
or evident proof" For the correction of
such errors rs these, the revisOry powers of
this court were, in our view, mainly con
| ferred.
What is meant by the words Proof evil
| dent or pre3ump tiOn great 2" The Judges,
AS the authorities which we have examined.
showed. were accustomed to look at the de-
positions before the coroner, or magistrate
to see whether there was probably felony
committed by the accused. If he was clear
Nv innocent, they discharged but if strong
ly inCulpated they generally refused bail.
After Indictment. however. thev declined
altogether an examination into the corpus
delecti. accepting the finding of the indiet
ment as strong probability of guilt.
Therefore. in Burns case. after indict-
ment bail was denied; therefore in Ben
motifs case, the Supreme Court of Louisiana.
declared that the Indictment raised the
presumption great;' therefore in Fights
case, the Su irene Court OF Iowa attached
the same effect TO the Indictment. 1t was
because the probability of guilt was height
ened. by indictment beyond what it was BY
| the mittimus of Justice of the Peace that
bail was denied in Taylor's case, and in
Mcleod case. % Wend.
If on the hearing of this case. neither the
prosecution nor defence had offered testi-
mony. what would have been the duty of
the Judge? Bail, or remand? To discharge
was absurd and impossible. There can be
hardly doubt that the prisoner must be re-
manded; for the reason that the matter of
the return creates the presumption great
meant by the Bill of Rights. The return
contained ample authority to hold the relat
or in custody, unless its force were broken ;
The prima facie case it made, overcome by
the testimony
We are not left entirely to the results of
| our own reflections on this point. There is
much force in the words of the Penasylva-
MIA Court in the case of Commonwealth VS..
Keeper of~Prison. / Ashmead 1874 The
| Pennsylvania Constitution contained pre-
cisely the provisions of the section of orr
Bill of Rights: "All prisoners shall be bail
able unless for capital fel0nieS where the
proof is evident ''Or the presumption
great" The Judge said: assuming mnr
der in the second degree To be bailable
offence; vet the power to discriminate and
decide upon the degrees of murder pertains
| to the jury which tries the offence, and is
| not properly eXerciseable by the Judge on a
question of admitting To bail. In given
case, where a malicious homicide should be
clealry shown and in which the presump-
ton was necessarily strong to take away
| life. i should pause before would under
| take to decide as to what degree of murder
| the perpetrator was gui ty, in such an in
| quiry as that before me. 1t is difficult to lay
! down any precise rule for judicial govern
ment in such q case; but it would seem a safe
| one to refuse bail in a case of malicious
homicide where the judge would sustain a
| capital conviction pronounced by jury on
/ evidence of guilt, such as that produced on
| the application for bail. and TO allow bail
| where the prosecutors evidence was of less
| efficiency. This affords a practical test by
which the granting or refusing bail may be
| readily s0lred.n
These rules are referred to with approba-
| tion by the Supreme Court of Ohio in case
of State va. Summons, 10 Ohio Rep. al
| aud the Court proceeds: $50 with us in
| Ohio. if the evidence exhibited on the hear
| ing of the application to commit be of SO
weak a character that il would not sustain
veriict of guilty against motion. for a
new trial. the court will feel it their duty
| under the Constitutional to bail the prisoner
/ The article in the Ohio Constitution is pre-
cisely like ours. In this case there had been
a disagreement OF the jury on one trial. and
that circumstance was an element in the
case. If the testimony should make the
| impression on our minds that the petit jury
might and ought to convict. on the same
| testimony we would not hesitate TO declare
that the Circuit Judge did Rot err in declin-
| ing bail.
/ In Lumm vs. State, Porter (Indiana) r.
| 1893. the application was after an indictment
| for murder. The relatOr in his petition adj
mitted the legality of his arrest and deten
! ton; but claimed that his offence was less
| than murder, and bailable. The Court OF
| their statutes allowed an examination q
/ witnesses, for the reason that -sthe indict
| ment is not conclusive OF the grade of the
offence; the prisoner may be convicted o
murder in the first or in the second degree
or OF mauslaughter." (The last two moi
capital.l The prosecuting officer very ofteI
prefers but one cOuat for murder, when tn
crime intended TO be imputed is murder il
| the second degree. or granddaughter.
| After Indictment on Habeas Corpus the
only possible enquiry can be as to the grad
OF the offence, or the strength of the evid
ence. IL is not question Of guilt or limo
cence absolutely-for there is no power {
| discharge. Ruf if On the fqGEim0nV there
no doubt that a murder has been committe
(and No point can therefore arise as o tn
grade1. but the issue is as tn the guilty CON
plicity of the relator with the Derpetrator-