Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1874-07-08
MISSISSIPPI.
The Recently Delivered DecisiOn Of
-Judge Fisher, DECLARING All Crfm-
inal Gases BafIable.
The Learned JuIist Fully and Ably
Sustained by a Leading member
Of the Bar,

\ excited by the recent decision of Judge
: Fisher, declaring all criminal cases
bsilable, must be my apology for this
,, ,, communication. The last issue of the
Independent South criticises the opinion
adversely, and with good deal of sever.
, ity; and the high legal character of one
of the gentlemen connected with the
South, gives importance to the criti-
eisrh. We agree with the Judge, and
not the critic; and as the science Of
criminal jurisprudence lie so little under
stood by many OF our present judiciary,
ard as so many of its time-honored
landmarks have been recently ignored,
or Obliterated, il is refreshing to find q
judge infused with the spirit and learn.
ing of Lord Hale. Our constitution,
section S, article /, reads: "All per-
sons shall, before conviction, be bail
able by sufficient sureties, except for
capital Offenses, where the proof
is evident, or the presumption great"
| Now, what is a capital crime? On this,
in great measure, depends the whole
controversy. The South says: ga capi-
tai case is one involving charge which,
il sustained. may be punished by death.
/ The liability and not the certainly of the
/ punishment is the essential characteris-
I tic OF capital otfsrses." And in support
] Vi lLAl5 uH BuGI state OF the
/ law was there ever any certainty that
/ any homicide, however wilful or pre-
meditated, would be capitally punished.
/ Murderers, to whom ba was denied,
were frequently found guilty of man
slaughter, who, when convicted of MUIR
der and sentenced to be hung, were
sometimes pardOned by the governor"
The learned critic is, we think, wrong
in his definition, and wrong in his con- |
clusiOns, even granting his definition to |
be true. Bouvier, in his law dictionary,
defines capital crime to be, lone for |
the punishment of v hich death is infliet- |
ed" Perhaps it would have been more |
accurate had he said, one for the pun |
ishment OF which death is prescribed by 1
law" The pardoning power, after the |
death penalty has been sdjudged by law,
cannot effect the argument either way. 1
The fact that juries have found men |
guilty Of manslaughter only, who had |
been denied bail as murderers, is an ar
gument against the position taken by 1
the South. This was done when juries |
had no right, in law, to render such ver-
diets, If the case was one Of murder and 1
the Judge was bound to refuse bail with
out reference to anything the jury
might do; and it is to be presumed that
the legislature, by the act OF 1872, in
tended to remedy this evil, and give to
the jury the right to do legally, what
their conscience previously compelled
them to do in violation Of the letter of
the law. The law of 1879 enscts: "That
no person shall be incompetent as
juror, because of conscientious scruples
against capital punishment; but |
in cases heretofore deemed capital the
jury may adjudge the penalty TO be |
daafh for Iifo in ha /
There is, therefore, now
no crime in State Of Mississippi "fOr
the punishn at of which death is pre-
scribed by law. The jury may, if they |
see fit, adjudge such penalty; but the
law, OF itself, does not 30 prescribe it;
and where the discretion is specifically !
entrusted to men cOnscientiOusly op-
posed to capital punishment, it is a
of the legislative will as
opposed to capital punishment in any
state Of the case. The leaned critic
says "that this statute was never in I
tended IN any way to affect the question
Of bail in criminal cases" In this he is
clearly mistaken. Under the constitu-
ton The case must not be capital only,
but the proof must be evident and the
doubt about it, the prisoner would
be entitled to bail. II the :
proof made out capital case; the pun
ishment prescribed by law was death,
and nothing save the perjury Of jury,
or the pardon OF an executive, could
prevent the inflictiOn Of the punishment.
The Judge, on hG6eds corpus, had no
right to anticipate thst the jury would | !
not do its plain duty, which was to con-
vict of a capital offense. Now, it is i'm
material what the proof may be, or
what the presumptions are, be the case
ever so bad, if it be one "hitherto DEEM
ed capital" whereby the letter Of the
aw, the death penalty, was inevitable,
L is no longer capital, unless jury shall
70 adjudge il. The death penalty is now
allowed, but prescribed, in any case.
AHd we think Judge Fisher clearly right
n deciding that all cases in the State Of
Mississippi are now bailable. The South
plants itself on the conclusion that not :
this stated murder is still
capital offense. What makes II capi
al? The verdict OF jury alone can do
{. A doubt as to what jury would do ,
would authorize bail; and when men op-
1osed to capital punishment sit upon
he Jury we may say the presumption is
neat, II the proof is not evident, that
he case cannot be adjudged capital.
The idea that mere liability to capital j
constitutes q capital case, !
which, under the constitution would au- i
horize refusal of bail, is exploded by !
ur supreme court in Moore Us. State, Z {
ieorge, where Honorable w. l.. Harris, {
ne OF Mississippi's great jurists, said: (
On application for bail we may grant {
be application even in cases where the I
ury might, and perhaps ought, on the {
ane evidence, to render q verdict OF {
uilty Of murder" Yours, ETC., =
JAS. r. CHALMERS. I