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

viously existed, but an express declaration
in the Constitution itself, made by the PEG
pie, that call 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
bailable by sufficient sureties." Then the
Constitution goes on to prescribe an excep-
ton to this universal rule-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 10 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 bail shall exist in all cases exceDt
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, III 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 ab
solIteiy ignored. but we have the very
language itself which the Constitution en-
ploys overrdden. 1t is not necessary TO 90
beyond the language of the Constitution
upon this question; but in the case of the
People against finder, which was cited on
the at HNr esIa anH hos haat, .
ferred to-a case based upon a condition of
the statutes which confessedly does not
now exi5t-Mr. Chief Justice Field (Cope.
j., concurring) Uses this language, and. OF
course. the language is only used Grg,te7ado,
Tor 1t was not necessary to the decision OF
that case that even that argument should
be prcscnted, but the language is that the
admission 10 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 eases. IN all other cases the adj
mission To bail IS right which the accused
can clsim, 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 Grgte3ido in the case Of the
feopie vs.. Finder, and not called for by
the eXigencles of that case. and not nfces-
ssary 10 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
lorna, as the embodiment of all the judi
clal power That exists with respect to the
exercise of this writ of habeas corpus: and
every question arising iU regard to that
writ comes before your Honor as an orig
mai question 10 which Your Honors iudg-
ment, under the Constitution and under
the laws, is to be applied. How do We
know whether this question was even re
ierred 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 ,ead that
section to-day by its own light, and we in
tensIiy 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 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
NNASltt- 1O ltldi llt NIlOlt lttcp anu erect
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 1870 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 a 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 OF 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 go 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. The right to bail is absolute in
every case, not discretionary, but absolute.
Unless the proof is evident or the pre-
sumption great, and on this point of
course
THE BURDEN Is OK THE STATE.
When the petitioner in this case proves
that he is incsrcerated and charged with a
criminal oliense, he is prima facie entitled
to bail and what the Constitution therefore
means, read in conformity with its terms
and with It's obvious intention is that on
the whole record it must be evident that it
is confesSedly 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 ~ e have advanced three points, The
first IS ~ to the construction of the consti-
IuAlOudl BlbNASlbIst 0tNtAiAlf as u Nll1l
Your Honor may inquire into under the
Indictment; and, third, rs 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 he established. The in
formation gives 10 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 habeas corpus
is pending SAYS that there is fair chance
upon the proofs or upon the presumptions
arising from the proofs. first. that the de-
fendaAt NAV 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 be
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 a 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 capital
offense: that is, an offense punishable by
death. When, from an inspection of the