Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-03-27
Argument of Hon. Joseph Craig.

With Difference to the Court, as this is a
matter of considerable importance to the
commonwealth, as well as to the defendant
III his case. / have endeavored TO search
out and find the authorities which ! deem
20 be applicable to the question now before
the Court, and with the indulgence of your
Honor shall present the authorities first
and the Law, and then argue the facts.
POWER OF THE COURT TO AUTHORIZE BAIL.
I shall address myself first to the ques-
ton OF the power of this Court to admit
the defendant 70 bail, notwithstanding
what the proof in the case may be- We
find the language of the Constitution to be.
Article One, Section 6, "All persons shall
be bailable by sufficient sureties, unless for
capital odenses when the proof is evident
or the presumption great" l take it for
granted that that is an absolute grant of
right under all circumstances where the
proof is not evident and the presumption
not great, and shall eDdeavor to show to
your Honor that it is mandatory in this
case, but not prohibitory in the other class
OF cases. | take ii for granted that there is
but one universal rule upon the question
OF habeas corpus, and that universal rule is
that whenever and wherever bail will
secure the presence OF the defendant
at his trial it ought to be granted. That
universal rule IS that imprisonment before
trial and conviction is never imposed upon
defendant as a means of punishment, but
simply for the purpose of securing his at
tendance at the trial. understand, from
the argument of the opposite counsel yes
terday, in their few brief remarks, that the
rule in this State will be claimed by them
to be that whenever a Trial Court will re-
fuse to set aside verdict where capital
conviction has been had that bail will not
be granted, relying on the case of Elk parte
Troia, in the Ga Cal, which case is based
upon the case in I'd Ashmead Pennsylva-
MIA Reports. | think | can show to your
Honors entire satisfaction that such rule
is plainly and clearly violative of the fund
amental law of this State, as shown by the
decisions in almost every State of this
Union. and that man shall not be denied
bail in any case unless the proof is evident
or the presumption great, and that the doc
trine laid down in these particular cases
has no application to the case now before
your Honor, because it is well-knoTn
proposition of law, sustained by all the
Courts, that when there is any proof TO sus-
tain verdict of conviction it will not be
set aside. no matter how slight that proof,
and no matter how slight may be the con-
flict of evidence The Court will not in
such case set aside the verdict of Jury,
because all doubtful questions have been
resolved in favor of the people and against
the defendant. The presumption of inno-
cence no longer exists, and it would be a
hardship and a direct violation of
the constitutional provision of this
State to hold that such rule
should prevail in any case upon
motion for bail, because the Constitution
clearly and explicitly says that before bali
shall be denied defendant as c0nstitu-
tional right, and before the constitutional
right shall be abridged in any manner the
proof must be evident or the presumption
must be great. Now, in the Troia case, as
the Supreme Court very properly said, the
evidence showed Il willful, premeditated
and deliberate ease of murder in the first
degree and if the testimony of Rafferty,
was to be believed, the defendant was
guilty of the highest degree of the crime of
murder, and the only question there was
was conflict Of evidence. Witnesses were
introduced to show that Rafferty, had sworn
falsely. On the trial the People had in
troducea evidence to show that the tes;i-
mony of Rafferty, was true that he was a
reliable and competent witness, and was
entitled to be believed in the trial of the
case. Therefore the only question before
the Supreme Court in that case was the
question of credibility of Witnesses
thing with which Courts seldom if ever
deal.
THE SOLE PURPOSE Is To SECURE THE DE-
PENDANTS APPEARANCE
Upon the first proposition, reading from
the case of ex parte Duncan, On 81 Cal.
page II, We find the following:
" The sole purpose which should guide
the Court or Judge in fixing the amount of
bail in any case in which bail is allowable
should always be to secure the personal an
pearance of the accused to answer the
charge against him. 1t is not the intention
OF the law 10 punish an accused person by
imprisonins him in advance of his trial
Such inhumanity or injustice as inhcting
punishment upon him before his guilt has
been ascertained by legal means, is not to
be imputed to the system of law under
which we live, and the provisions found IN
the American Constitutions establishing the
WIFI OF babeas corpus, securing 10 accused
persons imprisoned for felonies, less than
than capital in degree, the absolute right
TO be admitted TO bail, and declaring that
such bail shall not be excessive, strikingly
Indicate the extreme jealousy with which
the common law guards the personal lib
cry OF the citizen from unwarrantable or
unnecessary restraint"
Now. at one time it Was held in this State
pr.l
that the finding of an indictment was con-
elusive evidence of the guilt, or of the pre-
sumption OF the guilt of the prisoner, and
that you could not go back of the indict-
ment. That provision of our statute has
been amended, and to-day the fact that q
man has been indicted and arraigned fer
triai does pot create presumption of guilt
against him. In passing upon that case the
Judges of our Supreme Court used this
language:
:" And Independently of any consideration
OF the merits OF the prosecution. cireum-
stances frequently arise which will Justify
the allowance of bail after Indictment
found Thus bail may be allowed if the
trlai OF the prisoner has been unreasonable
delayed. And under our statute if the
trial be postponed, even upon sufficient
REASONS, from term 10 term, the Court may
discharge the defendant on his own recoy-
nIzance. Grim. Prac. Act Secs 59I. sos }
So also bail may be allowed where any
event has happened postponing indef
nitely the further prosecution of the action.
as the repeal of the statute giving the iuris-
diction of the Court to try the Indictment
twhere such jurisdiction depends upon
siatute) without provision for its transfer
TO any other tribunal. So also where the
law creating the otIense charged has beef.
AN?tehtl u TSScfhdliON OF the pen
atty fer past oifenses. Other cases might
be enumerated where BAIL after indictment
Tor capital otiense, may be properly asked
and allowed. Those to which we have re-
ierfed are OF the most frequent occurrence. y
That clearly comedies the power in the
Court To exercise its judicial discretion.
when 1t has become Saufcd that bail will
secure the appearance of the defendant
ant. 70 exercise its judicial discretion indie
pendent!y of the merits OF the prosecu-
ton. say that that ease in this state
establishes the doctrine that the law
makes it
THE ABSOLUTE RIGHT OF THE DEFENDANT
In all cases except where the proof is evil
dent and the presumption great. II is a
grant OF power to that extent, and il does
not prohibit the exercise of judicial dis
erection rs primarily exercised under the
common law OF this country Now | find
case in 81 Mississippi Reports. reported
at page 39-the case of ex parte Brideweil.
1t is q short case that ] think. entirely d:s-
poses of the Ashmead case and the case uf
ex parte Troia, in the 6t Cal | will read
1t, and invite your Honor'S especial atten-
ton to its reasoning:
By the organic law Of the State, ii is de-
ciafed that excessive bail shall not be re-
quiFe1; and all persons shall, before CON
viction be bailable by sufficient sureties.
except FOR capital otienses, when the proof
is evident or presumption great tBill of