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

8pH4tc@ even To magistrate courts kEE1
magistrates have the right n all Gases aot
capital wherc &c party hs@ occn cnmmt
ted or has not h~va committed. whcrc thr
eill ha> been found or ~ etll b. beea
iound. to enlarge by g-rantsag basI Hut
they have ~ night 81 allow hal 80 any
case where tie Charge ln r. vaJrsnt -
hid 81 Indictment = , cap3tal lelsuy
Judge ST the Supreme ~ Superior counts
and al otheC courts 81 reeooi have. how
ever. power 10 grant had IN sl other
eases. even capital cases. after taN found
See Code -. 1919. ilss. sito. iisl Th~
Ms decided hy our supreme Court ia 4
recent ease Hern3ou case. io7. a3t Your
Honor, have expressed the opuson & the
court ~ that case Thl- OPINION 49,
wr1tten by Judge clark. . very huus-t
and strict advocate 81 the administration
of the criminal hN. ~ the same tame
he j. 4 friend 81 human liberty
Therefore. the finding 81 . b4ll ~ the
grand jury is no bar - the granting 81
the writ 81 70 the allouanc, - ba.l ID
j. not 50 conclusive q The fact ii probable
cause a. 20 deprive j c}ttzso ~ the night
70 have the cause 81 h. detention AMI
his neht 10 hc admitted Is bal. i%nquir-l
INTO by virtue Il tins great wut 81 right
The grand jury hear the Statc.s wi
uc>-c~ only. and only such % Them a. my
bc sent before them by the solicitor. of
by order 8. the court.
Yet upon m examination 81 the witness
& ON both sides hy i Judge upon the writ
oi hahcls corpus. ID may appear. a. lt III,
appeared IN tins case. that there was uu
probable cause TO the charge ot murder.
" that II j. a case ot m~au>Aughtcr. aud
F. hence bdllablc. OF that II WAS cxeu~at.r
homicide. or that there II no probable
= ~ ssFgt ftA. "a N4l. .,A3... "a. -
defendant WAS the guilty party. IN m-
~telligent judge might. upon hctung the
whole evidence. which Mas not before the
grand jury. adjudsc that there was ,p
probable cause AZ 70 the capital offence.
At least. and admit 10 bail The true
bill Is no proof ot the charge.
The Indictment merely gives rise t. a
presumption IN favor OF the correctness OF
the action OF the grand jury. which may
not only be rebuttcd by the defendant.
but he may show that hc has committed
no crime at al. Thus presumption has no
other effect than to cause the court 10
proceed cautiously IN weighing the eTi-
dcnce.
Hence, wherever II appears that the
proof Is not evident. or that the prc,ump
ton is not great, the court VII admit To
bail, even though an Indictment has been
found for a capital offence. This was the
rule at common law, IN all cases. before
Indictment. The English rule that bail
can not be allowed after Indictment. is not
OF force III the United States. , \. & f..
Encycl. Law PIP. C71.
That is the law now if your IIonors
p'easc. Here my brother Gillian Citcd a
case to show your Honors upon what
sort Of authority he relies: this is their
conclusive argument" OF course Il 4
man can assert a thing to be law and
there is no one to contradict it and If the
ipse diXlt is uncontradictablc then IL Is the
law, but | propose to contradict the ipse
dixit.
He referred to the old case in which
Judge Itufdn intimatcd that the finding
OF 4 grand jury was conclusive Of pro-
bable cause. Mills case. . Dew. 420.
But the court distinctly puts liz ruling
III that case upon the ground that. at that
time. the law Of the Legislature forbid
the court to allow ball where a bLl had
been found. That was the act of the
Legislature at that time and OF course the
courts were bound. And 20 the court say.
citing this case III Hcrndon's case. that it
docs not operate to affect the question
there, for the Legislature had deprived the
court OF the power of granting ball in
such cases. That is not authority there
fore now.
Again be cites another case from New
York, which, / happened, IN the prepare
ton of my brief to find had been over
ru'cd by a subsequent case IN that State.
and that IS pertinent TO another rule.
which is the rule Of proof. which l VIII
arrive ut directly. He cites the ease Of
FIX. y. Tayloc, 9TH Cowan \. Y. IS. which
says that an indictment must be taken AZ
.a,1I,.txrn, ,,,A, tJ, 1Anr.n - 4I0 ,,,n.
on the application for bail.
Now what does the later opinion over
ruling that case say? People W. Perry
8, Abb. Pr. N. S. -.
Referring to Tayloc's case. the court
says: Since this decision Was made the
work Of ame io~ratIng the criminal code has
been going on, and now IN most ot the
States OF the Union the right to balI, even
III capital cases, unless the proof ~ eyi.
dent or the presumption great Is secured
by express constitutional provision III our
State this right has not been embodied III
the fundamental law, but has still been
entrusted 10 the highest court Of original
jurisdiction, or TO the members thereof.
The duty Of affording protection in proper
cases. however, Is imperative, and IN de-
tcrmining whether the particular case -
proper or not. we may well adopt the
constitutional principle OF our sister
States IN favor OF liberty, and aslow bail.
unless the proof Is evident, or the pre-
sumption great
Now. If your Honors please that decision
referred to. the decision OF the court To
which they appeal. IL i a decision winch
determines in the first place whether the
party upon the whole evidence ought to
be enlarged. You have a discretion, n legal
discretion 70 discharge when it appears
from the evidence that the proof i not
evident, that the presumption - no great.
or in the language Of the decision that
there is a well founded doubt as to the
guilt OF the defendant Of the offence
charged. In such a case the court viii set
aside the finding for a capital felony, then
that legal discretion woId be controlled
by the allowance to the defendant Oi
bail. and your Honors, as in all cases. ex-