Evening journal., 1914-08-21

Attorney Relnhardt said he wouiu
not call any witnesses as he was de-
pending on the States witnesses at
this time Mr. Lynn asked Judge
Churchman if a deposition made by
Hunter could be presented. Judge
Churchman said it could providing
that Hunter made it as a dying state
, ment This Mr.. Lynn said he had
not done, as he did not think he was
going to die. Judge Churchman then
gave the decision, which was as fol-
lows:
State VS.. Sharpless:
The practice in all cases when a per-
son has been shot on SO injured as TO be
in such a condition that death may fol-
low has always been TO hold the person
accused without bail until a hearing can
be held. At the hearing the question of
bail is considered.
The Constitution of this State, in Art
/, See. -, provides as follows;
"Art. l., Section l2 All prisoners
shall be bailable by sufficient sureties,
unless for capital oiienses when the
/ proof is positive or the presumption
great and when persons are confined on
accusation for such offense their friends
and counsel may at proper seasons have
access 10 them"
It is quite evident from the reading
of the foregoing provisions of the law
that the question of bail in capital cases
is not a matter of caprice or arbitrary
action, but is one which is regulated by
law. A person TO secure bail must
bring himself within the foregoing pro-
visions of the law.
Therefore, in capital cases, before
bail can be taken this question must
be determined. is the proof positive or
the presumption OF guilt great?
This cannot and should not be de-
/ termined quickly, instantly or hur-
riedly, before hearing or before a sin
gle witness is heard, or the facts are
known; and IL therefore follows that
before an accused person can be re-
/ leased on bail, some evidence must be
heard, and the committing magistrate
must be satisfied that the proof Is not
positive or the presumption Of guilt is
not great.
II is impossible to determine that
question from the fact that a person
occupies some position of authority or
prominence. IL can only be determin-
ed from the evidence heard. and with
out any evidence whatever, 1t cannot
be determined at all, or even consid-
cred.
The law as to the rights and liabili-
ties of police officer is well settled
in this State.
In State VS.. ONeil. q Houst. Ct
Cases, 46S), the court. Gilpin c. j.
charged the jury, that the case was OF
great importance in more respects
than one, and involved a charge OF
murder Of NO ordinary character, "A
it was against a public officer special
ly charged with the preservation OF
the public peace, and the protection
of human life and the security of per.
sons against all unlawful violence
in the city of which he was a duly
appointed and authorized policeman
for an act alleged to have been com.
mitted by him under a mistaken view
on his part of his official authority
, as such, and alleged in the indictment
TO constitute a crime of no less Z
. grade than that of murder of the sec
l ond degree under the statute o
/ all men such officers are bound t
= be prudent and circumspect in al
I matters pertaining to the security o
J. the lives and persons of its citizen
against all unauthorized force AM
violence, however humble. or evel
: lawless in their character they ma.
be.
All public officers are presumed il
law to know and understand thei
official powers and duties, and al
they aften impose hazardous, as wei
as grave responsibilities upon them
in the proper exercise and perform
ance of them, they are always actini
under the sanction and the protection
of the law. But when they exceel
their powers they are held to a stric
account for il according to the con
sequences of it, When an office
has authority to arrest a person an
uses proper means to execute tina
authority, and is resisted and kille
i'm the effort to arrest il will b
murder by all who take part I'm tn
resistance; and they may repel fore
by force, and resort to whatever fore
is necessary to overcome the resist
ance In such a case. and If in such
conflict the party resisting the arres
be killed, the law will hold il to b
justifable and protect the officer. Bl
the officer must not proceed to q
tremites. until there is a reasonabl
necessity for his so doing; and
case of an arrest for a misdemeanC
merely, and not for a felony, nothin
short of resistance reasonably re
quiring IT, will justify the officer
killing the party resisting, and If
attempting to make an arrest for
misdemeanor simply, he kills the o
fender where there is no resistanc
II will be murder. Where he is
pursuit OF a felon, or one who h'
committed a felony with power ,
authority to arrest him, and he CA
not avertake him, he may kill him
prevent his escape from him, and
will be justifable In law; but whe
he is in pursuit of a person charg'
with a misdemeanor merely, and III
warrant to arrest him and conn
overtake him, he is NOT justified
killing him TO prevent his escape fro
him. and If he does he will be gull
OF murder.
In this case O'Neil, the prisoner
the bar, was in pursuit of Wingate, WI
authority and a warrant as policem
! of the city OF Wilmington, TO arrest h
4 for the offence with which he was char
ed, of disorderly conduct and resist
u an officer in a previous attempt to a
rest him on the fifth of June, five da
i before that. He was therefore charg
q with mere misdemeanor under III
n complaint, and not with a felony; a
i even If he had ben charged with I
q ony. the officer would not have be
4 justified in killing him, if he could ha
a overtaken him and arrested him wi