Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1870-08-03
Criminal cuurt..--FIlppIu. Iudae.

The following opinion, delivered by
Judge Flippin in the Criminal Court OF
Shelby county, upon Mss subject of bail df-
ter itdict1neRt found for capital OGe7lse, is
by many of b most prominent members
ofthe Memphis bar deemed an important
one, and we cheerfully publish the same
at their request:
After Indictment found for a capital Of
Tense, can the Court entertain a motion to
admit the prisoner to bail, or does the ind
ing of a Grand Jury preclude the Court
from all inquiring into the character and
grade of b offense2 This is the legal
proposition now submitted for decision.
In the declaration of right of this State,
Section 10, it is written: THAT all prison.
srs shall be bailable by sufficient sureties
unless for capital o~lfense, when the proof
is evident or the presumption great"
The practice has not been uniform in the
different States nor in our own. The au-
thorities too are conflicting. In the State
OF North Carolina, where there Is a SINH
lar provision to our own in its organic
law, Chief Justice Rufin denied the ap-
plication for bail after indictment for a
capital offense. Upon the trial of Aaron
Bur for treason, Chief Justice Marshall
denied a similar application, although it
was proposed to prove that the witness
had been guilty of perjury upon whose
testimony the Indictment had been found.
Mr.. Justice Washington said, "we do
not feel at liberty to go into
ought to be bailed after Indictment for
piracy. 1T may be remarked in.this eon
neetiOn, however, that Jefferson Davis,
after indictment for treason, was admitted
to bail by the present Chief ] Justice of the
United States. We have now cited some
OF the authorities denying bail after in
dictment found for a non bailable crime.
d. - A.. Akhn. ka-I NAa O.-Nu.A
Court of Indiana, where there is a consti-
tutional provision identical with ourown,
IN South Carolina, in Virginia, in New
York. where there is no constitutional
provision, applications like the one before
the Court have beer granted. Finding
the authorities and practice conflicting,
we must have recourse to q construction
of the clause above quoted. After indict-
ment at common law, it seems that the
prisoner was sometimes admitted to bsil.
But to return to a construction Of the
clause in question-what is to be under
stood by the phrase, "That bail shall be
taken unless for capital ~Offenses, when
the proof is evident or the presumption
is great?" Then if the offense does not
shall be taken; it is not left to the discre-
ton Of the Court, but it is imperative
upoR the Court to take It,. But when and
how Is il to appear that the proof Is evil
dent or the presumption great; that Is
the vital question. There is no limit of
time fixed by the law, whether before or
after the indictment; there is no limit
fixed before the trial, when it shall be
made to appear that the "proof
is evident or the presumption is
great" There Is no limitation in our
bill of rights similar to that in
many of the States, which, limits the pe-
Rod until conviction. in which applica-
ton for bail in all cases will be enter
tanned. Is 1t then not reasonable TO sup
pose, in The absence of any express limi-
tation of time in Which the application for
bail must be made, that may be done in
capital cases-in fact, in all eases-up to
the period of conyiction2 But the qnes-
ton recurs, how is 1t to appear, and to
whom, that the proof Is evident, or the
is great? Is it to appear
upon q partial or entire examination of
the testimony In a matter of so much
moment to the suhjeet-inv0lving his per-
sonsl liberty, the protection Of which Is
of the prime objects OF all well-regu-
lated governments-it was well thought
worthy of constitutional guarantee Aud
is it probable and reasonable 20 suppose I
that, in b minds of the trainers OF our
bill of rights, the phrase, When the
proof is evident, or the presumption il
great, meant anything less, or anything
else, than that this should arise only upon
an examination of the entire evidence in
the canse2 When we speak Of the proof
In a cause, we mean that state OF the
mind which succeeds upon an examine
ton of the evidence In that particular
for proof Is the result of evidence.
and properly speaking, there can
be nc proof-uo impartial proof-and the
law u mean this-upon a partial In
of the testimony. The degree
proof depends onthe extent of evidence.
In cases Of commitment, the Court pro-
eeeds on probabilities. Such is the stat
ute; but when personal liberty is lie
question, shall the evidence, to its extent
and character, correspond with the mag
nitude of the object sought to be attainedf
Would anything less than this insure fair
to the aocasedf The Government
Ices not seek to Cypress, but to insure to
Is people uniform Justice, not only while
IN trial, but at ali times; q why not
before, as well as after, Indictment foundf
Jan 1t do so by hearing the accuser, while
he voice Of the accused is hushedf And
low can 1t be ascertained that the proof