The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1870-11-17
- TFPnEME COURT,
m,ate OF rHIssiS~IPPPi.
INT of Error to the Judgment Of The CIR
cult Judge, Refusing Bad.
The Judgment of the Circuit Judge affirmed
oil The Judges ConcuTring.
oprx1ox BY NJ. JUSTICE SIMRALL.

The Sheriff returned on the writ that he
hsId the relator in CUSTODY under arrest Dy
bench Warrant, to ans"era an inoictmentfoi
The defendant rested his case, and moved
~ discharge upon or without bail; but tn,
~ refused to discharge or bail which IL
SSsipued for error. The return of the Sher-
~ not being eontrOverted, as might have
been done under Art. ii. of Habeas Corr us
act il showed sufficient authority TO hoiu
the prisoner In custody.
The Indictment was then read and tn
testirnoBy OF the witesses taken. during
The trial several questions as 10 admissi0ilitJ
and competency OF testimony were mare !"
uornts OF David Roach. the actual perpetrat-
- If the homicide, were not admissible il
evidence against the relator because Their
Ma not been proof made that the relatol
had conspiled and conleuerabeu Win lAoach
"a kill the deceased.
r. Il well settled law that before the act
"A declarations of one party can be receiv
- IN evidence against the other there mus
- proof OF a conspiracy aliunde. The Words
Themselves do not prove the confederacy or
tsnd 10 prove it; and, therefore, such de-
ssIsrafleps are mere hearsay. But '.eon-'
i.ssv NAV be proved, like other contro
spp,,ed facts. by the acts Of parties or by cir
e',n,srances as well as their agreement"
In This case the declarations objected to
- made in the presence and hearing OF
naraIaror-some of them addressed to him
Ind are therefore, relieved OF the objec
- made by the counsel, and were compe-
.nnt m other grounds. altogether as tend
ing with other things, TO make oHt the
conspiracy
That the Judgment which we render in
,bis case may be the better understood, we
iii attempt to state the principles of the
law of bail as at common law in England
and the United States. and as modified by
our constitution and statutes. BY the early
Fnglish common law, bail seems TO have
haen 4 matter OF discretion. with al judicial
ma0istrates and courts before whom offend
ers might be brought. Blythe ancient stat
ME of " estminister-l G. ID. especiaily-the
noger to bail, as to the inferior courts and
MAGISTRATES. was regulated and restricted;
butthe Court of Kings Bench ahd its Judges
,cere left unaffected by this statute, in pos
session of full commonlaG jurisdictiOn.-
The celebrated Habeas Corpus Act OF
charles II. conferred the power to bail on
the Judges of the Supreme Courts of West
minister Hall, and other superior judges.
In those States of the Union which have de-
rived their jurisprudence from the English
source. this common law jurisdiction has
been held TO pertain to the superior courts
and has been very generally delegated by
statute to the judges of the higher courts.
The primary object of the great writ of
habeas corpus was 10 denver persons re-
strained of their liberty without any or
sufficient legal cause and authority; there
fore, the respondent to the writ was requir-
a6 in the fullest manner, to return the cap
tion. its date Ond the cause or authority of
the detention, and the court, or judge, ac
cording to the circumstances of the case.
either discharged. bailed, or remanded. The
courr of Kings Bench and the judges au-
thorized to hearand determine case OnhabeaS
corpus have, according to the principles of
the common law, the power AMI discretion to
bail all persons whatsoever. and for all
-, xnrsfl AID N1 81
degree of the crime, or the nature of the
punishment. Their power TO bail in a capt.
tal case was as unquestioned as when the
punishment did not reach to the life of the
accus d. The power and the discretion
being thus extensive and its exercise dis
cretionary, il is important to look to the
practice and the principles on which the
courts and judges proceeded. The rule as
laid down by proceeded. The rule as laid
down BY Hawkins, b. 2. chap Is, S 20 and So
is that persons convicted of felony or who
have confessed their tilt, or are notorious
" guilty OF treason or manslaughter, by
their own confession or otherwise are not
to be admitted to bail without some special
motive TO induce the court To grant it. for
bail is only proper where it stands indTffer-
emit whether the party is guilty or innocent
of the accusation against him, as it often
does before the trial; but when that indiff-
erence is removed it would be absurd to
bail"
In Rex VS. Wyer . T. r. az, the applica-
ton 20 bail was on the ground that the of
fence imputed was not a felony, but the
court being of the opinion that it was a
felony. bail was refused. So in Rex VS..
Marks, East 1853. L. appearing from the
dispositions taken before the cOroner's jury
that the crime charged was felony, the
prisoner was remanded.
The court refuses to receive eXtrinsic ev-
idgnce combining itself to the return. and
the dispositions before the committing
magistrate or the coroner. 1t the return he
legally sufficient the court cannot try the
fact on affidavit, nor can an issue be made
upon it.
l. Bacon Abr. Title. Bail, $50. T. r.
757 Burr 1888; / Chit. Grim. Law Haw,
Pc. Chap. l6.
In Tavior's case-5 Cowen-the relator
was under Indictment for manslaughter
which was not a capital felony. The Su-
preme Court of New York had the same
Discretionary power to bail as the Kings
Bench in England. The three judges de-
hvered their opinions seriatim and the sub
jeet of bail as TO the power. the right and
the practice, was very thoroughly consid-
cred on the authorities. The conclusion
reached was that in felonies, bail would not
be granted before Indictment unless In
special circumstances; among others. the
probable innocence of the accused, and such
was stated to be the practice from review
Ofthe decisions and accredited text writers.
AIter indictment the accused ought not to
be bailed. The finding of the grand jury
is taken as furnishing strong presumption
or probability of guilt. Other considera-
tons will influence the discretion of the
court as when the prosecution has been
Hnreasonably delayed, or the life Of the per-
son is endangered by some distemper or
sickness threatening life has been induced
oy the confinement. l. Bacon, Abr. $50.
The right to bail, as it stood at common
law, was considered by our predecessors in
the case of ex parte Dyson, % Miss. Rep.
Sos In the very sound and judicious Opin-
ION OF the Court-after stating that the
constitutional provision, Art. !, sec. L., on
Y applied to bail before conviction, and
mat after conviction the right of the pris-
9ner remained as. at common law, whilst
ueeiaring the power as 'picnary, it added
whilst the power Is admitted, it should be
exercised with great caution and only when
cue peculiar circumstances of the case rem
oeT It right and proper" THE court is
governed entirely by a sound judicial dis
eretion." There must be some special mo-
i've to induce the Court to grant bail"
Dyson had been convicted of a felony not
capital and his case was pending in the
nigh Court awaiting reargument. Under
the Habeas Corpus act CT Charles III. the
Judges would not look into testimoney
Allunde, but regarded the finding of the
grandjury as conclusive upon them.
Inc writ OF Habeas Corpus is in nature OF
ssu VI Error 70 examine into the leSalty
Otthe imprisonment, and. therefore. if COM
mands the caption aRd cause of detention to
De returned. If the relator was in custody
oy commitment of a justice eff the peace or
oeaer inferior magistrate. the custom vac TO
send with the writ certiorari to send up
Iae dispositions on which the commitment
vas predicated. If there was no pretence
oIlmputing to the prisoner an indictable Of
fence he viii be discharged. But il Is more
usual to bail or remand according to the ma
lH.
a.. AS already stated, the Kings Bench, and
Judges have power 20 bail for any of
iencs whatever before or after conviction.
mt this is not q wild, irresponsible discre-
aon, left to the caprice or individual jadg-
went OF each Judge; but legal discretion,
ssgulsted by the rules and practice as con-
al \. \ - .l.-r.l