Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-03-27

uhuer prOyOcau0n, ana YET the proVocatlon
may be serious enough to deprive the in
territorial killing of its malicious character,
50 that it is neither murder on the one
hand nor jusiifabe or excusabie on the
other. 1t is a very serious crime, though
not reckoned as done with malice.
In ex parfe Bird and Bailey. GA Arian-
sas) p. 275, the Court said
Tie petitioners in this case allege by
their petition that they were indicted at the
August term 1866 of the Prairie Circuit
Court for the crime OF murder. That after
their aIraignment on said Indictment, at said
! August term, they applied TO the Hon
| Liberty Bartlett, the Judge OF said Circuit
| Court, 70 be admitted to bail, and in sup
port Of their application, presented certain
! testimony contained III written transcript,
which transcript. contained all the test
| mony presented and considered by the
! Court That on the hearing of said appli-
| cation their application TO be admitted to
! bail was refused, and they were ordered
! into the custody of the Sheriff. the pet-
| TONERS deny that they are guilty of the
crime of murder. and pray the Court to re-
| view the decision of the Circuit Court in
refusing them bail and to grant them a ha-
beas corpus 10 be brought before this Court
and admitted TO bail, Or that a manda;nuS
may be issued to the Circuit Judge, com
handing him to admit said petitioners to
bail, and, in support of their application
again submit certified transcript Of the
testimony received and acted upon by the
Ni it1l SouIt-
-. nay siVcli i'lil anu c:'lslUer
a,io,i ~ tne arguments 10! anu against the
apt''caeion, anu nave ull!seltlY eNalhlneg
a., oi NY teittli1ii? supiiiitte'i
oy tlie transcript ana WINE 1t Is our desire
! would be, in any wise, calculated 10 preiu-
~ M iStlts % Ine ota'e .. "l tne prs,
10 oai LnG iIai lilal oi !e cause, ana
tiie iaiis''dse Vi tlis oouit ID me
Sase % ooSu CT al. eX paile w arh-, 4lV),
tnet ~? court mas tue power OF revision,
pu' nut ~ slouiu oe eautl9uSiy exercised
w e"''e'ipt Iose siSut OF tne humane TIhcl-
IL ~ 'ie "a" 'na' eqGlISS eFeIy re 'soiia
oae Go''D' ~ - 70 tne oeneht ol th5 prs
~ ei1le Ewing 10 ,nese peti
';,9 "a SUN Cou3's
a. ise III o't "Ileii GouSlceflhS the
- e'iS I'3e' VIC 'iii'A 1t ilsnt 10
"' w III. III " o. a.
IN " oi'e - eAie PISe ~, McEoy
vs.. nc 'oiu'T' IiiIies on. tiIs RUE that
10 t"a! oV NilLts WIN h1lice anu
WIN al ~ 'aAe ie anu 4el IL IL
- ueNoi9 u INA. 'liiiiclous aDahoohed ana
Z" iietli 'ii,i' ,iurueI OF
lhe III -. ue5iee' IL may nc iiiurueI III tie
eoOoliu 'ee vi ina.IS4'iI's II requires
more 'iiIii ati lii'eheoial killlilg 10 consul
LUZ inuiu el ~ iiie lIrst ueSFee WIN nance
IN IN tne case 10, vi ohoie ana farklhson vs.; Inc
o';t'e e IN . Missouri, oil the court sald.
20 by Tue CONSTITUTION ol thls otate every
oiieilse 10 paiidcie eASept cdpital onelises
Mnere tne prooi Is eVlaeht or the presuinp-
non eIca'. now Dy our statute
l M 10 iio' VI ltseIi capltal ohehse l0r
an Us eiaues, except tne lrst, are puillsh,
/ Raad;no from, Church on uohoos Corrt,,e
a very late work on this proposition. Sec
! ton 396. at page 531.
Application is addressed to the sound
! discretion of Court. And even while it
has unlimited powers to bail, it will not do
| so in the absence of special reasons. except
where it is a matter of right. In other
words all persons have the constitutional
right to be bailed. except where the proof
is positive or the PRESENTATION great that
they have been guilty of carital of1ense.
and even when the proof against them is
of this character. they NAV be admitted to
| bail. within the sound discretion of tho
presiding Judge. if there be excentionaI
! circumstances that seem 10 demand II
The admission to bail. however. where
| there is evident proof or great nresumntio,
of guilt of a capital ofIense. is not a c6nsti
| intioual right Int a matter restinr in the
! SOUND luUlglal discretion OF tlp trial IuNup
who should not Grant il save under extra0r,
binary circumstances. The Judpe before
whom prisoner is brought nv habeas cor
plls for the purDose of givinp hail may ev
ercise his own discretion as To the amount
of the nenaltv of The recornizance without
regard 10 theamount fixe6 nv fine ,naoistrafa
! who committed the prisoner In gTantino
/ hail each case mnst stand nnoo ;ts ;ntr;ne7
sic merits"
J
a V'A'i A'N vi N'-'9i u - i'NAi-iA''
propose to argue to this Court that in
| tins case there are special circumstances,
| ana there are special reasons, why the ]u-
/ dlclal discretion can be exercised i'll this
] case III iavor OF TINS appLcatlon. propose
| TO argue that question.
The Court-Let me call You attention to
| tins. l have no doubt that under the Con-
| stltution the Court would have the right to
grant bail in any case; that is to say, that
| the Court would be bound to grant bail In
! any case, except capital case, where the
| proof is evident or the presumption great.
4 SO Tar as the constitution is concerned, the
| Court would have the power under proper
showing to grant bail, but does that clause
in the Constitution prohibit the Legislature
from providing that the Court shall not
grant bail in cases OF that character, as our
/ Penal Code does. Our Penal Code provides
'iat Jan shetll hOt pe SIduteu III cdPlldi
cases where the proof is evident or the pre-
sumption great. Now, Is that violative of
the Constitution Section 1910 of the Penal
Code provides that II shall not be done, but
under the Constitution 1t might be done.
The question is, whether or not there is
any constitutional objection to that provi-
sion OF the code.
Mr.. HlShton-l wish to respond to the
Court by saying that IN my Judgment that
section of the Penal Code, to the extent
that 1t seeks to prohibit the exercise of dis
erection on the part OF the Court. is uncon-
stltuuonal. am not aware that the ques-
ton has ever been passed upon by the Su-
preme Court OF this State, but that is the
ground that nave always taken-that the
constitutional provision Is mere limitation
upon the power which otherwise existed,
and IS to be construed according to its evil
dent purpose and object. l do not wish, OF
course, to interrupt MT Craig argument.
Inc Court merely wished to call at
tentlon 70 1t.
MI craig tcohuhulhg)-Ihat was the
hrst proposition to which addressed my
sell, ana IN support OF winch L read from
the case OF eX parte !lnder. The old
statute oil TINS state contained precisely the
same provision mat the Penal Code
now contains Inc language OF the Old