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

leyldcnt or the presumption great, Dut TINS
provision shall not be SO construed as to
lpronibit bail after Indictment found"
| In Indiana the Supreme Court held that,
lis under an indictment for murder in the
first degree the accused might be convict
cd of murder in the first or in the sec
lit was held that affidavits tending to show
of offense in determining the question of
Ibail Oumm Us. State, 8 Ind. 294). S. :.
Though, it is true, under an indictment
for murder the accused may be convicted
| of a less offense, the grand jury have no
fright 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 uncontradicted,
would warrant in their judgment con-
Eviction of the offense in that degree.
As said by Mr.. Justice Sutherland, in
ex Parte Taylor Is Cow. $50 that an in
dictment 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, it should
not be taken as conclusive of the grade
that the prosecution was instituted for
malice or mistake, and that the inveigling
| of the slave from his master was not
fraudulent or felonious, but in eonse-
lquence of fair claim of property, should
be received and considered on the apph-
cation of defendant to be admitted to
bail This decision was made by 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
offenses. The consideration of the testi-
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 administrator 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.. Herndon, 107 N. G. 934.
1t 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 ques-
ton presented was whether the finding Of
bill of indictment for all purposes con-
cluded the defendant as to his right to
lapply for bail. Does it conclude the
question whether you will hear the testi-
mony as 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 af-
| ter indictment for a capital felony con-
| test may be waged as to the merits of the
case on application 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-
ltion of 1875 was omitted and the following
inserted: Excessive bail shall not be re-
quired, nor cruel or unusual punishment
inflicted"
| 1t would seem that this was intended
only to confer on the judges general pow
er 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
Estate 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
1.-THE proof it is incumbent on the State to
present a case of guilt supported by
lproof evident and presumption great"
This provision is no longer in the constl-
tuition. And while it was there no bail
was allowed after an Indictment. The rule
tstated by the court in Herndon's case is
this "where the charge is of capital
Ifelony, which is prima facie not ballable,
the courts are very slow to admit to bail,
for there is shrewd authority that all a
man hath will he give in exchange for his
own life. and after indictment found it
is only in clear case and with great eau
ton that a judge viii admit to bail
careful reading of the decisions of
those courts which allow bail after in
Idictment found will develop this rule:
that bail win be refused where the court
would sustain a conviction for capital
felony if pronounced by jury on the
Ievidence submitted.
it IS earnestly urged tnaL your Hon0fs
lshould not grant bail in this case in the
Iexercise of your discretion, even if you
Ihaye the power so to do.
| 1t is submitted that the defendant waiv-
led his opportunity for trial at the
March term of this court and that scarcely
Ia month will intervene before another
term of this court, when he will again
have an opportunity for trial before a
Jury Indeed, the circumstances under
(which the application for bail is presented
lare calculated to arouse the suspicion that
the action of your Honors is invoked
mainly for the purpose of affecting public
lopinion and influencing the final outcome
lof this case. There are no circumstances
connected with the case. and not such
Iclear proof, as will warrant your Honors'
Invasion of the province of petit jury.
IMR. JOHN Z. WOODARD'S SPEECH.
May it Please Your Honors:
When the distinguished counsel who
first addressed your Honors on behalf Of
the defense arose yesterday, we expected
Ito hear. before this august tribunal. a
Icalm and dignified argument of the law
r