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

the dDSeHCe Oh CONSTITUTIONAL IeSbTICUlOll,
was supreme and empowered to prescribe
"a rule. The Legislature recognizing that
fact proceeded to legislate about it, and
1T gave to the courts authority to allow
bail in all cases whether before or after
indictment, whether before Incarceration
under a mittimus or after incarceration.
1t gave the court the right to enlarge by
granting bail IN all cases not capitas; that
applies even to magistrates courts. Even
magistrates have the right in all cases not
capital where the party has been commit
ted or has not been committed, where the
bill has been found or no bill has been
found, to enlarge by granting bail. But
they have no right to allow bail in any
case where the charge in the warrant on
bill of indictment is capital felony.
Judges of the Supreme or Superior courts
and all other courts of record have. how
lever, power to grant bail in all other
cases, even capital cases, after bill found.
See Code 55, 1139, 1856, 1850, 1161. This
was decided by our Supreme Court in a
recent case. Herndon's case, 107, 934. Your
Honors have expressed the opinion of the
court in that case. This opinion was
and strict advocate of the administration
of the criminal law. At the same time
he is friend of human liberty.
Therefore, the finding of bill by the
grand jury is no bar to the granting of
the writ or to the allowance of bail. 1t
is not so conclusive of the fact of probable
cause as to deprive citizen of the right
to have the cause of his detention and
his right to be admitted to bail, inquired
into by virtue of this great writ of right,
The grand jury hear the States wit
nesses only, and only such of them as may
be sent before them by the Solicitor, or
by order of the court.
Yet upon an examination of the witness
es on both sides by judge upon the writ
of habeas corpus, it may appear, as it has
appeared in this case, that there was no
probable cause to the charge Of murder,
or that it is case of manslaughter, and
hence bailable, or that it was excusab'e
homicide, or that there is no probable
cause, upon the whole evidence that the
defendant was the guilty party. An in
telligent judge might, upon hearing the
whole evidence. which was not before the
grand jury, adjudge that there was no
probable cause as to the capital offence,
at least, and admit to bail. The true
bill is no proof of the charge.
The Indictment merely gives rise to a
presumption in favor of the correctness of
the action of the grand jury, which may
not only be rebutted by the defendant.
but he may show that he has committed
no crime at al This presumption has no
other effect than to cause the court to
proceed cautiously in weighing the evil
dence.
Hence. wherever it appears that the
proof is not evident. or that the presump-
ton is not great, the court viii admit to
bail, even though an Indictment has been
found for 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
Encycl. Law pp. GIL.
That is the law now if your Honors
please. Here my brother Gillian cited a
case to show your Honors upon what
sort of authority he relies; this is their
conclusive argument. " OF course IL a
man can assert a thing to be law and
there is no one to contradict it and if the
ipse dixit is uneontradictab BILE then it is the
law, but propose to contradict the ipse
dixit
He referred to the old case in which
Judge Ruffin intimated that the finding
of grand jury was conclusive of pro-
bable cause, Mills case. 2 Dev. 420.
But the court distinctly puts its ruling
in that case upon the ground that, at that
time, the law OF the Legislature forbid
the court to allow bail where a bill had
been found. That was the act of the
Legislature at that time and of course the
courts were bound. And so the court say,
citing this case in Herndon's case, that it
does not operate to affect the question
there, for the Legislature had deprived the
court of the power of granting bail in
such cases. That is not authority there
fore now
Again be cites another case from New
York, which, l happened, in the prepare
ton OF my brief to find had been over
rued by a subsequent case in that State,
and that is pertinent to another rule,
which IS the rule Of proof, which I viii
arrive at directly He cites the case of
Elk. p. Tayloe, 5th Cowan n. Y. SIS, which
says that an indictment must be taken as
conclusive upon the degree of the crime
on the application for bail
Now what does the later opinion over
ruling that case say? People VS. Perry
8, Abb. Pr. n. S. q.
Referring to Tayloes case the court
says: "Since this decision was made the
work of ameliorating the criminal code has
been going on, and now in most of the
States of the Union the right to bail, even
in capital cases, unless the proof is evi-
dent or the presumption great is secured
by express constitutional provision In our
State this right has not been embodied in
the fundamental law, but has still been
entrusted to 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,
termining whether the particular case is
proper or not, we may we'll adopt the
constitutional principle of our sister
States in favor of liberty, and allow 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 tc
which they appeal 1t is decision which