The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1872-06-03

mitted to bail, came up before Judge
Melvin on Saturday. The case was not
argued on this day, His Honor intimat-
ing that the case had been sufficiently
argued on the Tuesday previous. The
opinion is very long and exhausts the
subject. Our columns being crowded
this morning we have been compelle
to make the following Synopsis, which
we think will be found to contain all the
points made in the case. We regret
our inability to publish the opinion in
full as requested by many of the menu
bers of the bar. But that the opinion
has been filed as one OF the papers IN
the case we would not be able to give
even this synopsis. Notwithstanding the
popular anxiety to read the reasons
which led the Judge to admit ROBIN
son to bail.
We omit the statutes quoted and the
references to authorities:
After stating the proceedings OF the
case, and the questions submitted, the
Judge proceeds to discuss hequestion OF
bail, controverting the position assumed
for the prisoner, that bail is Demands
ble of ri bt in cases of felony, except,
possibly, those punished capitally, the
grade of which is not reduced upon the
hearing, as well az that taken by the
Attorney for the State, that no felonies
are bailable under any circumstances
unless some special extrinsic fact-such
as danger to life resulting from con-
inement or the like-be shown.
The rule at common law is that all
offenses of whatever grade are bailable
in the judicial discretion, but felonles are
not bailable as of right. By judicial
discretion is meant, not arbitrary Will.
but a sound legal discretion, regulated
and controlled by the circumstances OF
the case, and by such legal consldera.
tons as have heretofore Influenced
courts of competent authority in pass
ing upon similar circumstances in SIM
liar cases.
But in q majority OF the States bail
is regulated by constitutional or statut-
ory provisions. In some it is OF right.
In others, OF right, except in capital
cases where the proof is evident and the
presumption great. These provisions
do not exist with us. In Virginia and
West Virginia the onl Y constitutional
provision prohibits excessive bail. The
statutes on the subject since the revision
Of 1919 provide, substantially, that, for
good cause shown, the circuit courts, or
the Judges thereof, may let to bail, be-
fore conviction-thus leaving the COM
mon law rule in force. The word may
negatives any idea of right on the part
of a prisoner Nor has such right
been affirmed in any OF our courts.
Nor is the proposition teuable that
bail cannot be taken unless for special
cause. This construction in majority
of cases would give all authority to a
Justice who hears the case and acts
according to his legal discretion, and
none to the Circuit Courts and in the
case of murder, where the justice is not
permitted to release on bail, it would
practically prohibit any hearing upon
the merits until final trial-a PROPOSE.
ton entirely repugnant to our law. In
those cases where the justice does admit
or refuse, is his decision to be held
final? Did the Legislature intend to
clothe him with all authority to hear
and determine upon the facts a ques-
ton affecting the liberty Of person
charged with, but not convicted Of, an
aggravated offense, and require at the
same time the Courts to sit idly by with
nerveless hands, powerless to remedy
even though the innocence Of the prls-
oner should appear?
But it is said that after Indictment,
at any rate, inquiry As to the merits
is closed.
Some authorities may be found that
favor this, but the American decisions
are opposed. Our own decisions, which
must govern US, are conclusive. The
question has been passed upon by the
General Court Of Virginia, and all
doubts set at rest In R,ahertord& case,
Rand, it was decided, upon the stat
ute of 1919, identical in all material
parts with the present one, even as to
the phrase good cause shown" that
the Circuit Courts and the Judges may
always, even after an..Examining Court
has refused to bail and a Grand Jury
has presented true bill, inquire into
the facts and circumstances, and exer.
else their legal discretion as to bail.
And reason supports this doctrine.
There is nothing in the composition OF
grand juries which makes their action
conclusive. They hear the evidence
for the State and decide merel y whether
the accused should be placed upon his
trial. For a sufficient reason, they gen.
orally present for the highest grade OF
the offense. And is the accused to be
held in confinement solely on account
of their adverse decision? Suppose he
is afterwards able to show that the
offen.e is a misdemesnor, bailsble OF
right? Or that there is want OF proba,
bic cause on the whole testimony? Or
that it is a case OF mistaken identity ?
Would not this be good cause?
The true doctrine is that applications
to be admitted 10 bail, for whatever
cause, in all cases Of felony, are always
addressed to the sound legal discretion
of the Court. In passing upon them
several principles are to be kept in
view. The object OF imprisonment be-
fore conviction is to secure the presence,
when required, of the accused, and ii this
can be secured, with reasonable Ger.
tainty, by taking sureties, it will ord-
narily be done, thus postponiug puu-
ishment, in fact as well as in name,
until after conviction. In Of
lenses OF high degree where the