The Leavenworth weekly times. [volume] (Leavenworth, Kan.) 1870-1880, 1878-04-18
KABEAs CORPUS.

EABEAS CORPUS.
Joseph Lewis, held trial on the charge of
killing billiard Green, was taken before
Judge Crozier of the District Court yester-
day on writ OF hdbeas corpus, and his bail
was reduced by the court from FIVE thou
sand to two thousand dollars This action
by the court will be sustained by our citi-
zens OF all class. Nobody doubts that
Lewis will appear for trial in fact the evil
dence against him is 80 slight that Judge
Crozier says-"Were the whole matter be-
fore me for re-examination think should
hesitate to hold the defendant to answer
further" He has always borne a very
good reputation, he has a family depend
ing for support upon his labor, and the bail
as fixed by the lower court being more than
he could give, he was locked up in the
county prison, and would have been obliged
to remain there until the Fall term of court.
Under all circumstances we think every
body will agree that His Honor has acted
not only wisely but humanely in reducing
the bail to point where it comes within
the power of the defendant to raise 1t. The
following is a copy in full of Judge Gro
zier's opinion:
District CO.ut Of Learenrorth County:
STATE OF Kansas
joseph 4 Lewis. "'''"' Corpus.
Crozier, j., at Chambers.
| The defendant is brought before me for
the purpose of determining whether the
amount OF bail required by the examining
magistrate should be reduced below the
amount fined by him; viz: 5000. When
| the application for the writ was made, it
was agreed by counsel on both sides, that
he report OF the testimony incorporated in
the petition for the writ was substantially
correct, and might be regarded as the testi-
mony before the committing magistrate
upon which the defendant was held to an
swer.
| Were the whole matter before me for re-
examination, | think | should hesitate to
hold the defendant To answer further; but
inasmuch as the examining magistrate
thought it sufficient TO hold him to bail,
and the defendant asks nothing but re-
duction of the bail, it is necessary TO con-
slider the question whether or not he should
be held at all.
The testimony very clearly shows that
the deceased came to his death by reason OF
4 gun shot wound, upon the evening men,
toned in the complaint, and at the place
designated. 1t also shows that the defend
ant might have done the act, but the testi-
mony upon which such a conclusion could
be predicated, is wholly circumstantial.
No one pretends to have witnessed the act,
nor to have seen the defendant in position
to have accomplished it. The only circum-
stance shown in the evidence upon which
even a suspicion of his guilt could be predi-
Gated, are that a gun was found upon his
premises which some of the witnesses thought
might have been recently discharged, and
that other witnesses testified to matters in
dicating i'll feeling existing between the de-
PENDANT and the deceased.
As to the first of these grounds OF suspic-
ion the testimony is quite unsatisfactory,
being confined exclusively To the appear
ance Of the gun found upon his premises
| the day after the homicide. Were the So
luton OF the question to depend alone upon
| the testimony of the prosecution; the same
being not only very indefinite, but quite con-
Trajectory; itwould hardly be said that rea-
sonable ground for suspicionwas thereby laid;
| and when against that ii is considered that
the supposed suspicious appearance Of the
gun is satisfactorily explained,.i If the ap-
parently equally creditable testimony of
| other witnesses is to be believed, it would
seem that there would be nothing in this
| direction justifying conclusion OF the guilt
OF the defendant. 1t would be exceedingly
unsatisfactory testimony upon which to
accuse an individual, OF former good char
acter, of the highest crime known to the
law, that a witness, or witnesses, should tes-
tify that gun had recently been discharg-
| ed, when they at the same time say that 1t
is impossible, from the indications upon
which they predicate their opinions, to de-
termine within any specified time, the date
| of the discharge. II the testimony upon
| this subject were alone that of the prosecu-
ton, to say nothingo of the explanation fur
nished by the defendant the assumption of the
guilt of the defendant would not rise above
the dignity of guess.
In regard to the second OF the above men,
toned grounds of suspicion, the subject is
open to greater doubt. Whether it should
be determined that there was i'll feeling
between the deceased and the defendant
will depend upon the credence to be given
TO the positive testimony of some
of the witnesses for the prosecution.
One or more of them undertake to detail
conversations, and parts of conversations,
between themselves and the defendant, and
between the defendant and others in their
hearing, indicating a settled luminosity be-
tween him and the deceased. A careful ex-
animation OF the testimony shows, that in
instances where the defendant is said to
have uttered threats against the deceased,
naming him, the menaces attributed to the
defendant, are contradicted by other wit
nesses, who state they were present ut the
times referred to. In other cases where it
is said that the defendant declared his en-
nifty to the deceased, the witnesses SO testi-
living, in the same connection, state that
the deceased was not named, nor did they
know that he was referred to by the defen-
dant
Taking the letter of the testimony as it
appears before me in the papers, i think |
there is probable cause TO suppose the de-
guilty. Vi but
as the witnesses were personally before the
magistrate, and he had an opportunity, de-
MED to me, to judge of their credibility
from their appearance, manner OF testify
ing, &c, much is due TO the estimate
placed thereon by him. Where the testi-
mOny was contradictory, he was in posi-
ton to better Judge which witness should
be believed than ] am and hence do not
feel at liberty to disregard the conclusion at
which he arrived.
As above indicated, the only question
am called upon to consider Is, whether IN
der all the circumstances the bail should
be reduced? The accused has been in con-
finement since the sixteenth day of March
last, and SAYS he is unable to procure the
required bail; that his property consists
alone of homestead worth about 81 800
that he thinks he could procure bail in the
sum of $1,000, and that he has family de-
pending upon his daily labor for support.
These statements are not contradicted in
the papers. The rule in fixing bail is not
to put it at q sum beyond the ability of the
party to procure, but to fix it at an amount
which will probably insure his appearance
at the time Of trial. He may very proper.
y be required to tax the Partially Of
friends to risk his integrity to some extent, |
but they should not be required 70 take an
unnecessary risk. The magistrate, or
Judge, should take into consideration not
only the pecuniary condition Of the de- |
PENDANT, but also the probability of his
guilt manifested in the evidence /; and If he |
shall be Of the opinion that the suspicion Of
guilt attaching to him is slight, he should |
have the benefit of it, as we'll in fixing his |
bail a. in any other stage of the proceeding. |
Under all the circumstances, considering |