The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-06-14

selected from the hundred, with four mag
jstrates of the town; that it was made a
matter of impossibility for the strong to
acquire any advantage over the weak, or
the rich over the poor. 1t was not only
for the prisoner at the bar that this law
was made operative, but also for those
who might not be able to see the prisoner
brought to justice that the jury trial was
inaugurated For instance, take a man
of power or influence in his domain, he
could not at that time select a single
magistrate or justice whom he thought he
might influence with the hope of getting
off on bail. 1t is well to note that re-
cognition of the rights of the people under
the Magma Charter was forced upon King
John. | only state this to show that at
the inception of the writ of habeas corpus,
which l believe was perfected 81 Charles
End, it could not have been entertained
nor can it ever be entertained, that any
judge or magistrate would invade the
province Of the jury in order to pass upon
matters of fact in regard to any case,
but simply to say, as propositions of law,
whether or not. upon the hearing Of the
return of the writ of habeas corpus, there
be sufficient testimony upon which a
their verdict stand upon appeal to either
the Superior or Supreme Court. Our state
Constitution recognizes this proposition,
for while it says that "the privileges Of
the writ of habeas corpus shall not be
suspended" it also says that mo person
shall be convicted of any crime but by
the unanimous verdict of jury of good
and lawful men in open court" There
fore, / maintain that it takes the same
method to convict a man of any crime as
it does to acquit him of that crime; for
if the courts by the writ of habeas corpus
should go into the findings Of the facts I
that any one charged with crime
would have the right to apply to any
Judge in the State and have him pass upon
his innocence or guilt giving the power
and compelling such judge, with whom he
may have had personal relationships Of
the most pleasant character, or for whom
he may have done some favor, to say
whether or not he shall be discharged, and
thus anticipate the actions of the jury.
contend, that all that this court has to do
with this case is to say whether or not
there is more than scintilla of evidence
against the prisoner in favor of murder
in the first degree, that it is a purely
legal proposition, and that the court
would not permit bail if jury could
find under the law that the prisoner IS
guilty Of murder in the first degree; for
while your Honors may have the power
to release the prisoner, even though lie
were guilty of murder in the first de
gree, it has never been the practice of the
court to do so.
Now let us look at the history of this
case The defendant had the right to be
heard before the justice of the peace, who
bound him over to the Superior court, and
he simply pleaded not guilty, without IN
any evidence at all. After he
had been in the Wake county Jail for
perhaps a month or a little more, and IN
which time he had ample opportunity to
prepare his defense. he was brought into
court after a true bill was found against
him by the Grand Jury, an resisted trial.
The continuance Of the case was granted
at his request, and since that time he
has continued in Wake county jail with
all avenues open to him for the prepara-
ton for the application for bail under the
writ of habeas corpus, and it is now,
when his trial is about six weeks off, that
the court is called upon to say whether
lie shall be liberated upon bail. l know
that the experience of your Honors is
far greater than my own but, as for my
self, / can say that | have never known
case similar to this, and there must be
some reason for this application that does
not appear on record in these proceedings.
What are these reasons? Perhaps they
may be gathered from the nature of the
affidavit which wes filed in this court
when the prisoner asked for a continuance
Of this case. In that affidavit there was
/ great cry raised as to unjust popular
feelings and prejudice. / do not assume
10 say what his Interior motive is, but
should it be an effort on the part of the
defense to have your Honors virtually
charge the public as to what they should
think in this case, thereby anticipating
something which may not exist, and the
unbiased trial by jury, / respectfully main
.ain that your Honors should not and /
believe your Honors viii not, lend your
selves to anything of the sort.
/ have already argued that, according to
ny view of the case, your Honors should
not admit the defendant to bail if there is
more than a scintilla of evidence upon
which the jury, sitting in this case, could
ind a verdict against the defendant; or,
n other words, if this case should come
% the Supreme court on appeal the court
would say there was enough of evidence
% sustain a verdict adverse to the defend
ant. AS we have seen, the grand jury
las found true bill in this case. Upon
his point / would call your Honors at
-ention to the case of State vs.. Herndon
n 107 North Carolina, page 93S. 1 read
rom the report of the case: Where the
charge is of a capital felony, which is
1rima facie not bailable, the courts are
very slow to admit to bail, for there is
ihrewd authority that All that a man
lath will he give in exchange for his life,
md after indictment is found it is only in
clear case, and with great caution, that
Judge viii admit to bail, for while the
Indictment is no presumption of guilt on
he trial before the petit jury, it is other
wise in the application for bail. The pre-
then is in favor of the correct
less of the action of the grand jury, and
t may be that testimony was before them
which is not produced before the judge
l desire now to take but one phase Of
his case in my argument, and which COW
RS very nCtle of the evidence. / wish to
10 so with as little sting for anyone as
'ossibe, and indeed such has been my eff
ort through everything that l have al