The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-06-14
The Haywood Case
Continued from fifth page.)

In force as to bail during this time are
found in chapter 3d. section 8, Revised
Statutes and Revised Code, which provide
in connection with Habeas Corpus pro-
ceedings that the defendant shall be dis
charged or admitted to bail unless 1t be
made to appear to the judge that the
party is detained upon legal process, order,
or warrant out of some court that has
jurisdiction of criminal matters or by
some warrant signed with the hand of
any judge of the Supreme or Superior
Courts, or some Justice of the Peace, Tor
such matters or offences for which by law
the prisoner is not bailable."
So. there is absolutely nothing found in
these statutory provisions which dlstln-
guishes between bailable and nonbailable
offences, except as distinguished in the
constitution, and nothing, either IN the
statutes or Constitution. to distinguish
between the right to bail before and after
the finding of the bill of indictment.
1t seems quite clear that at common law
bail was not allowable after Indictment
for a capital offence
Vol. Enc. Pl. & Pr. p. 1868; 3 Vol Am.
& Eng. Enc. Law, p. ell.
This was the rule at common law and
yet obtains as the practice in England, as
it did without question in this State until
very recently.
This was the rule laid down in the case
of State VS.. Dew, Taylor Il N. CD a.
and it is to be noted that the decision
was in no wise made to turn on the pro-
visions of our constitution or statutes.
The question again received the atten-
ton of our court in State VS.. Mills,
Dew, 400, where it was said:
after bill found defendant is pre-
sumed to be guilty to most, if not to all,
purposes. except that of a fair and I'M
partial trial before petit jury. This
presumption is so strong that IN a case
of a capital felony the party cannot be
let to bail"
Here, too, no reference to the constitu-
tional and statutory provisions is found
as the basis of the decision of the court,
but it is evidently based upon the well
recognized rule of the common law and
evident principles of public policy. For,
clearly, unuer the constitution and
statutes then existing, there was no dis
tinction as to the right to bail before and
after indictment.
The rule or practice of denying bail af-
ter indictment for a capital offence has
been followed in the courts of all the
States and also in the Federal Courts, with
few exceptions.
Such is declared to be the law and pre-
vaihng practice in:
Church ON Habeas Corpus. sec. pa, 405;
u. S. VS.. Ruse, Wash. E. c. Rep. pa;
People VS. Mcleod, Hill, 81:
People VS.. Hyler ct ais, 2 Parker's Grim.
Rep. SO:
/ Burr's Trials. 80;
People v. finder. 10 Cal. 500.
One of the most valuable authorities in
this connection is that of People V. finder
10 Cal. 539, in which the opinion is de-
livered by Field, c. j. In that State the
constitution contained a provision iden-
teal with our constitution of 1776: and 1t
was provided by the Criminal Practice
Act of the State, "a person may be admit
ted to bail before conviction, as follows:
1st as a matter of discretion IN all cases
where the punishment is death; End, as
matter of right in all other cases. 1t
is said by the Court: 1.-The Indictment is
something more than mere accusation
based upon probable cause; it is an aecu-
sation based upon legal testimony. of a
direct and positive character, and is the
concurring Judgment of twelve of the
grand jurors, selected to inquire into all
public offences committed, that upon the
evidence submitted to them the defend
ant is guilty. Such being the case, an
indictment for capital offense does of
itself furnish presumption of the guilt
of the defendant too great to entitle him
to bail as matter of right under the
constitution, or as a matter of discretion
under the legislation of the State. 1t
creates a presumption Of guilt for all pur-
poses except the trial before petit jury.
In Hight VS.. L. S. Il Morris, 410), the
Supreme Court says: IAN Indictment
furnishes no presumption of guilt against
prisoner when he is upon trial, but so
far as it regards all intermediate proceed
ings between the Indictment and the trial,
it furnishes the very strongest possible
presumption of guilt and the finding Of
a true bill is conclusive so far as to put
the accused upon his trial and to control
all the intermediate proceedings. =
The doctrine of the adjudged cases both
in England and in the United States is,
that in capital cases. on the application
for bail no inquiry can be had as to the
evidence taken before the grand jury, as
the deliverations OF that body are Sc
cret, and the law does not permit the tes-
timony received by them to be disclosed.
Justice Field continues:
"Can affidaVits or oral testimony be adj
mitted to repel the presumption arising
from the Indictment?
I'VE are clearly of the opinion that they
cannot be received. To permit such a
procedure would result in rendering the
application for bail in the majority of
cases, in effect, trial upon the merits.
This rule prevails in the Courts of nearly
every State. 1t is also the rule of the
Federal Courts. In the case of the United
States VS.. Burr. the defendant. having
been indicted for treason applied to be
admitted to ball. and in the course of the
discussion which followed, inquired wheth-
er the Court would go into testimony ex-
trinsic to the indictment, and Mr.. Chief
Justice Marshall replied, that he had
never known a case similar to the present
where such an examination had taken
place. +. So in the case of u. S.
VS.. Jones g Wash. CIR. Court Rep. 22D
the defendants were indicted for piracy