The Portland daily press., 1878-05-25
Bail Commissi sners' Decision,

Bail Commissi sners' Decision.
The following is the decision, given yesterday
morning, by the bail commissioners in regard
to reducing the bail Of the men now in custody
charged with stealing $1,000 worth of Charles
DAYS watches, few weeks ago:
Joseph Bowen and John W. Henderson,
petitioners In hdbeds corpus
Before q. W. Goddard and M. P. Frank, bal
commissioners for the county of CUMBERLAND,
at Portland, May %, 1873.
The petitioners, claiming to be Canadian sub.
jects, were arrested at Alfred, May 4, for the
larceny of twenty.one gold watches, of the
value of S840, from the store of Chas. Day, Jr.,
of Portland, on the preceding day. They were
brought to Portland on their arrest and com.
mitted to jail, but were not arraigned before
the Municipal Court until seven DAYS after.
May IL, when, after thorough examination,
IN which the County Attorney and their present
counsel participated, they were required to
RECOGNIZES IN VI, 800 each for their appearance at
the September term of the Superior Court, and
In default of bail were recommitted. They
now ask for reduction of bail. At the hear
ing before us, their counsel offered to prove
what the evidence at their examination was,
but the County Attorney objected that
I-Tbe commissioners have no power to re-
| duce bail in any case.
II-They have 20 jurisdiction 10 auy case
during the session of the Superior Court.
Il-They have no authority to Inquire into
|
by the magistrate.
| W-The act of Feb. 26, 1873, chapter 1877,
winch authorized the appointment of bail COM
mlssloners confets upon them power to Inquire
INTO any case "where person is confined 10
| jail for balable offence and admit any such
person to bail, and exercise the same power any
| justics of the Supreme Judicial Court cap,"
&c. It is believed that the justices of the
D. y. Court have always exercised the power of
reducing bail, power which seems to be Incl
| dent TO the Ilobt tn od NIT hail Tn no oh
OF any Limitation, the statute seems to us to
confer that power upon the commits soners
(IL) 1t is. not perceived why the fact that a
criminal or civil term of the Superior Court is
now in session in this city should operate as a
SUSPENSION of the powers of bail commissioners.
The act of 1873 contains such restriction,
and the commissioners haven't Is believed,
always acted when called upon, whether the
court has been 10 session or not. Indeed. 1t is
our impression that the justice of the Superior
court has ceased to exercise his concurrent
power in cases like this since the creation of
bail commissioner. We do not refer to
has been found, and the prisoner has thus
come within the actual personal control of the
Superior court QIL) In reference to the
third objection, it is our opinion that the find
ing OF probable cause BY the examn ing
magistrate Is conclusive on that point so that
1t is not within the DO wer of the commissioners
to discharge these prisoners without bail
That, however, is not understood to bs the
purpose OF the petitioner counsel; he does not
ask for the discharge of the petitioners without
bail, but that the bail be reduced because be
claims that it is excessive. He therefore
desired to be permitted to prove what the |
evidence before the Municipal court was, in
order that we might be able to determine moe
understandngly whether the bail was excess
slve or not. The question seems to Us not free
from doubt. The constitution of Maine |
declares that Excessive bail shall not be-
required" [Declaration of Rights, Art. 1, 5
mi fhn aks Al
soner, the degree of the probability of his
guilt, and the magnitude of the crime withwhch
he is charged the three main factors which must
enter into the estimate? Can an intelligent
decision of the question whether bail is or is
not excessive be arrived at without some
knowledge OF the evidence against the pri-
soner? With some hesitation, we were of
opinion that the petitioners should be permitted
to prove what was the evidence upon which
they were required to recognize, and we see no
reason to reconsider that opinion.
But the petitioners have called only one of
the witnesses who testified at their examina-
tlon; they have attempted to show what the
testimony was by the evidence of several per-
sons who heard it or parts of it. Such a mode
OF procedure is necessarily unsatisfactory, aud
in this case it is evident that a full and accur-
ate report of the evidence has not been given
US. This enures to the disadvantage of the
petitioners, because the burden of proof is on
them. Upon the testimony as given before us
it is impossible for us to say what the degree of
probability OF their guilt was or is. While the
evidence given us on this point was incouclu-
sive and imperfect the petitioners have offered
no testimony at all on the main point, or their
ability to furnish the bail required by the ex-
amining magistrate. They have been silent
themselves and they have offered us no evil
dence. 10 the absence of any proof touching
their pecuniary means, how is it possible foT us
to adJudge that 81, 500 is excessive?
Furthermore, it appears to the commission
ers singular that the petitioners allowed their
examination to be deferred until it had become
too late for their indictment and trial at the
The Grand Jury sat May z, and it was the Pc
titioners manifest constitutional right to be ex-
am1ned or released prior to its adjournment
Nevertheless, for some reason not apparent
to US, they allowed that opportunity to pass
and have subjected themselves to the risk of
four months needless Imprisonment. If the
liability to so long term of preliminary incar-
ceration at this season of the year had been the
result of unavoidable accident, the fact might
have had weight with the commissioners.
The power to reduce bail should, in our
opinion, be exercised with caution.
The careful, deliberate Judgment of the
judge of the Municipal Court ought to COM
mand great respect, and should not lightly be
iDterfered with.
After due elaboration neither Of the com.
mIssIoners sees sufficient cause for reducing the
bail OF either of the y titioners. They must be
remanded to Jail unless they are prepared to
furnish satisfactory bail in the sum of 1900 |
each.
G. w. GODDARD, co.u;o
M. P FRANK, oo""iss'onefs'
PORTLAND, May "a, 1878.