The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1903-06-16

eNldeht or the presumption great; but this
pIoNlslon snail not be so construed as to
pronlbIt bail after indictment found"
In Indiana the Supreme Court held that,
as under an indictment for murder in the
llrst degree the accused might be convict
ed OF murder in the first or in the seq
1t was held that affidavits tending to show
OF offense in determining the question of
bail. Lumm vs.. State. 3 Ind. 294).
Though, 1t Is true, under an Indictment
lor murder the accused may be convicted
OF Il less offense, the grand Jury have no
right to present, and we are not to pre-
sumo they have presented an Indictment
of that character, unless the evidence be-
fore them, unexplained or un~contradicted.
would warrant in their judgment a con-
%viction of the offense in that degree.
As said by Mr.. Justice Sutherland, in
eX Parte Taylor 6 Cow. So that an in
ldlctment must be taken as conclusive
was under Indictment for capital offense
cation for bail.
In South Carolina, State VS.. Hill q
cnd degree, or manslauGhter, 1t should
not be taken as conclusive of the grade
that the prosecution was instituted for
lmallce or mistake, and that the inveiglng
OF the slave from his master was not
fraudulent or felonious, but in conse-
lquence of a fair claim of property, should
be received and considered on the appli-
cation of defendant to be admitted to
bail. This decision was made by a di-
Vided court.
1t would seem that the great weight of
authorities and weighty reasons of public
policy are opposed to the bailing of of
tenders held under indictments for capital
L - e - -
mony for such purposes is in the nature of
a trial upon the merits; it is somewhat of
an invasion of the province of the jury;
and can be used to the detriment of pub
lie justice by forcing the disclosure of the
secrets of the grand jury room and the
testimony at the command of the State.
After Indictment no great injustice can
be done the defendant by delay in the
prosecution, for he can then demand and
have a speedy trial.
This question is considered Of vital i'm
portance in the administrators of justice,
and careful consideration of it is asked.
unless it shall be concluded that it has
already been determined in the case of
State VS.. Hcrndon, 107 N. c. 934.
It is submitted that the decision in
that case does not conclude the question
to such full extent as is involved IN the
present case. In that case the only pueS-
ton presented was whether the finding of
Il bill of Indictment for all con
cluded the defendant as to his right to
apply for bail. Does it conclude the
question whether you Will hear the testi-
mony rs to guilt in eXtenso, or only such
as was submitted on behalf of the State
TO the grand jury? Does it determine as
the settled practice of the State that at
ter indictment for a capital felony a ON
test may be waged as to the merits of the
case IN appncation for bail? The ques-
ton Is of sufficient Importance to demand
very careful consideration.
In the Constitution of 1868 the provi-
sion heretofore quoted from the Constitu-
ton of 1916 was omitted and the following
inserted: Excessive bail shall not be re-
quircd. nor cruel or unusual punishment
inflicted"
1t would seem that this was intended
only to confer on the judges general pow
or of bail, and to remit us to the practice
prevailing at common law, as said by Mer-
riman, c.. j.. in his dissenting opinion in
State VS.. Herndon.
But if State VS.. Herndon is to be
accepted as conclusive of this entire ques-
ton, what is the rule there laid down
for the guidance of judges in cases of
this character? Surely not as stated by
Counsel for Petitioner, that upon all
the proof it is incumbent on the State to
present a case of guilt supported by
proof evident and presumption great
This provision is no longer in the consul
tuition. And while it was there no bail
was allowed after an Indictment. The rule
stated by the court III Herndon's case Is
this where the charge IS OF a capital
felony, which Is prlma tacle not ballablc,
the courts are very slow TO admit to bail,
for there is shrewd authority that all a
man hath will he give III exchange for his
own life, and after Indictment found it
is only in Il clear case and with great eau
ton that Il judge will admit to bail"
\ careful reading of the decisions OF
those courts which allow bail after in
dictment found will develop this rule:
that bail will be refused where the court
would sustain Il conviction tor a capita
felony if pronounced by a jury on the
evidence submitted.
1t is earnestly urged that your Honors
should not grant bail in this case III the
exercise of your discretion, even if you
have the power so to do.
It IS submitted that the defendant waiv.
ed his opportunity lof Il TRIAL d0 tHt
March term Of this court, and that scarcely
q month will intervene before another
term of this court, when he will again
have an opportunity for trial before 9
jury. Indeed, the circumstances undei
which the application for bail is presented
iare calculated to arouse the suspicion tina
the action Of your HOnors IS invoked
lmainly for the ulp of affecting public
iopinion and influencing the final outcome
of this case. There are no circumstance
connected with the case, and not suci
clear proof, as will warrant your Honors
invasion of the province OF a petit jury.
JOHN E. WOODARD'S SPEECH
MAY it Please Your Honors:
When the distinguished counsel who
/, first addressed. your HonorS on Dchal1 O
the defense arose yesterday, we expected
to hear. before this august tribunal, {
!, calm and dignificd argument OF the Law