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


That is the major proposition not merely
the affirmation of the law which had pre-
vlously existed. but an express declaration
in the Constitution itself, made by the PEG
pie, that "all persons shall be bailable
by sufficient sureties" Now that
covers every case that can possibly
be conceived Of, as an absolute right,
not in the exercise of discretion, but as an
absolute right, that all persons shall be
bailabe by sufficient suretiesp Then the
Constitution goes on to prescribe an excep-
ton to this universal ruie-that is, an ex-
ception to that extension of the common
law rule, which makes the granting of bail
on absolute right. Unless" says the
Constitution, for capital offenses, when
the proof is evident or the presumption
great" So that the Constitution of this
State-which is either in some of its pro-
visions an expression of power, or in other
of its provisions limitation upon power
specifies in terms, and in the broadest
language which could be employed. that
the absolute right, not the exercise of dis
erection in the matter. but the absolute right
TO ban shall exist in all cases except
one class of cases, and that is where the
proof IS evident or the presumption great.
1t Is contended upon the other side that by
that language, the Constitution of this State
intended that the Legislature should have
the power, in those cases where the proof
was evident or the presumption great, to
prohibit the granting of bail altogether In
so constituting this language of the Consti-
tuition, we not only have the whole history
and office Of the writ of habeas corpus alb
solIteiy ignored. but we have the very
language itself which the Constitution en-
piOys overndden. 1t is not necessary to 20
beyond the language of the Constitution
upon this question but in the case Of the
People against finder, which was cited on
the other side and has been frequently re-
ferred to-a case based upon a condition of
the statutes which cOnfessedlv does not
now exi5t-Mr Chief Justice Field Cope,
j., cOncurriug) uses this language, and, Of
course. the language is only used Grg,iel,do,
Tor II was not necessary to the decision of
that case that even that argument should
be presented but the language is that the
admission to bail in capital cases. where
the proof Is evident or the presumptiOn is
great, may be made a matter Of discretion,
and may be forbidden by legislation, but in
no other cases. In all other cases the ad-
mission to bail is right which the accused
can claim and which no Judge or Court
can properly refuse" Now, so far as the
argument on the other side rests upon any
other legislative enactment in this State,
II must be based upon that casual ex-
preston used Grglteld0 in the case of the
People VI. finder. and not called for by
the eXigencies OF that case. and not neces-
sary to the decision of any point which was
involved III that case. Your Honor sits
here as
THE SUPREME COURT OF THE UNITED STATES.
As the Supreme Court of the State of Cali
furnIa, as the embodiment of all the Judi
clal power that exists with respect TO the
exercise OF ihls writ Of habeas corpus and
every question arising iU regard To that
writ comes before your Honor as an orig
maj question to which your Honor's iudg-
meui, under the Constitution and under
the laws, is to be applied. How do we
know whether this question was even re-
terred to before those learned Judges, as to
the obvious construction of what was then
the equivalent of the present Section of
Article |. of the Constitution We read that
section to-day by its own light, and we in
tenslfy that light by the light which flows
from universal history and precedent in
the matter of the writ of habeas corpus,
and we say that the people of this State in
tended, not. that they should deviate from
our republican system, and not that they
should deny 10 men u right which was so
knit into our political institutions that its
deprivation would be practical revolution,
but to extend and make more effective
and beneficial a right which had previously
existed. So that the whole force and effect
OF Article l.. Section of the Constitution
is to make the right absolute in every case
where the proof is not evident or
the presumption not grea', and in ali other
cases TO leave the matter discretionary with
the Courts. And that is so thoroughly ex-
pressed IN the language of the section that
Section 1910 of the Penal Code is neces-
sarily to be read and construed in connec-
ton with the constitutional provision, and
when so read and when so construed it
leaves in the Court the exercise of discre-
ton which is as ancient as the common
aw itself.
Now, it is said in this section that the Of
Tense must be capital. In this case the in
formation is for murder, which embraces
two degrees, and may embrace man
slaughter. | noticed the other day, in a
case in which | happened to be engaged in
the Territory of Utah. where the statute is
Identical with the Penal Code of this State
upon the degrees of murder, that the in
dictment IN terms charges murder in the
first degree whereas under our system of
pleading-and | am not questioning the
correctness or the accuracy of the informa-
tion-it is sufficient to charge murder, with
out specifying either of the two degrees.
SO thar upon the face of the information
itself, even though the law had not been
changed, and though some presumption
were to arise from the existence of the in
dictment, or the information which is its
equivalent, your Honor would be COM
PEELED TO 20 into the facts of the case for
the purpose of determining which Of the
two degrees OF murder, or what lesser of
Tense included in the charge of murder.
there was some probability of the defend
ant being convicted Of Now, the words
used in the Constitution proceed a step
further. Tho right to bail is absolute in
every case. not discretionary, but absolute
" LRleSs the proof is evident or the pre-
sumption great and ON this point of
course
THE BURDEN Is ON THE STATE.
When the petitioner in this case proves
that he is incsrcerated and charged with Il
criminal ofTense, he is prima facie entitled
to bal, and what the Constitution therefore
means, read in conformity with its terms
and with its obvious intention, is that on
the whole record it mast be evident that it
IS confesSedy clear that the defendant is
guilty of the highest crime but one
namely, treason-and in all probability
will receive the highest penalty known 10
the law. But the proof here is not evil
dent nor the presumption great. Let us
see. ~ have advanced three points The
first IS rs to the construction of the consti-
tutional proviSions second, as to what
indictment; and, third, as TO the burden of
proof to create the exception which the
Constitution Of this State describes. and
which by Section 1870 of the Penal Code,
is permitted to be established The in
formation gives 40 light upon the question
1t is silent, made so by the language of the
Penal Code Then, Independently of that
exercise of discretion which exists in every
case, even though the proof be evident and
the presumption great and locking simpl :
to the proposition as to what constitutes
evident proof or great presumption if the
Court before which writ of babeas corpus
is pending says that there is q fair chance
upon the proofs or upon the presumptions
arising from the proofs. first. that the de-
PENDANT may be convicted of manslaughter,
or, second, that he may be convicted of
murder in the second degree, or, third,
rising higher in the scale of crime, that he
nav be convicted of murder even in the
first degree under circumstances which
would warrant the jury in affix-
ing the penalty at imprisonment for
life - in all of those events he
he is not prima facie guilty of capital
offense, and the proof is not evident and
the presumption is not great-in other
words, the proof is not evident nor the pre-
sumption great that he is guilty of a capital