In Pennsylvania however, it was said in Commonwealth v. Keeper of Prisons,' that "where a crime is charged which is short of a capital felony, the judges are bound to admit the prisoner to bail; but where a capital felony is charged and the proof of it is evident, or the presumption great, no power exists anywhere to admit to bail." In those states where the right has not been secured by constitutional provisions, it is protected by the court in as ample a manner as by the Court of King's Bench in England.' It may be doubted whether the right to the writ of habeas corpus, as it is regulated by the habeas corpus acts in several of the states, is coextensive with the constitutional or common law right to be let to bail. There are cases excepted in those acts, from the benefit of that writ in which the prisoner may clearly be entitled to be bailed. If in those cases where the imprisonment is not, and is not alleged to be, illegal, the writ of habeas corpus may be granted for the sole purpose of admitting the prisoner to bail, as has sometimes been done, it must be by virtue of some special statute or of that "sovereign jurisdiction in criminal matters," which belongs 436] only *to the highest courts. The writ of habeas corpus was a common law remedy, where bail was improperly refused." And has been granted where excessive bail was exacted.' The practice in Alabama where bail was alleged to have been unlawfully denied, was much considered in Ex parte Croom. In that case it was held that a pris 1 2 Ash. 227. 2 Ex parte Tayloe, 5 Cow. 39; Jones v. Kelley, 17 Mass. 116; Evans v. Foster, 1 N. Hamp. 374; The State v. Everett, Dudley Law Rep., S. Car., 295, cited 1 Hill Rep. 398, note. 34 Inst. 290; Hand's Pr. 522. Jones v. Kelley, 17 Mass. 116. 5 19 Ala. 561. oner charged with a capital offence, after having been. refused bail by a circuit judge, on application by habeas corpus, may petition the Supreme Court for a revision of the decision of the circuit judge. That the proper practice in such case, is, for the prisoner to petition the Supreme Court for the writ of habeas corpus, and such other remedial process as may be necessary to render its control effectual, setting forth under oath such a state of the case as will show that the circuit judge erred to his prejudice, and that he was entitled by the case then made to the relief which he seeks; and if the Supreme Court deems the showing prima facie sufficient to entitle the prisoner to bail, the writs of habeas corpus and certiorari will be awarded to bring before the Supreme Court the body of the prisoner and the proceeding had before the circuit judge, that if upon a full hearing on the return of the writs, the prisoner should be adjudged entitled to bail, he may be allowed to give bail in such sum as may be prescribed. In the United States then the excepted cases are "capital offences, when the proof is evident or the presumption great." In these cases the common law *right [437 to bail has been extended; for the King's Bench may refuse to bail on a slight preponderance of proof against the prisoner.' Here the proof must be evident or the presumption great. The court must find there is proof evident or a strong presumption of the prisoner's guilt, or allow him to give bail. 2. Inquiry before indictment. We have seen that it is not competent in this summary proceeding to try the question of the guilt or innocence of the prisoner with a view to his absolute discharge. It has also been held in some cases in England, that extrinsic evidence would not be heard even with a view to bail: as where a felony was positively charged the court refused to bail though an alibi was supported by numerous affidavits.' So they 12 Hawk. P. C., ch. 15. 2 2 Str. 1138. refused to examine whether a man brought up before them had been previously acquitted of a charge precisely similar.' So they refused to bail a person for receiving stolen goods, the defendant's affidavit admitting the receipt of the goods but denying that he knew them to be stolen. Nor would they allow, at the request of the party accused, an inspection of a person whom he had stabbed, in order to ascertain that he is out of danger, that the prisoner may be admitted to bail." These decisions, however, cannot be reconciled with those cited in 2 Hawk., ch. 15, sec. 79, where a more liberal and humane rule was acted upon. In the United States, where in all such cases it is the 438] prisoner's right to be bailed, such evidence is *admissible to guide the court in determining the amount of the bond. In the case before cited of The State v. Asselyn,* where affidavits and oral evidence, not produced before the committing magistrate, were offered to show that no felony had been committed, although the judge felt constrained to reject it on the motion to discharge, he did receive and consider it on the motion to bail, saying: "Though I cannot receive this evidence on a motion to discharge the prisoner, yet I am not precluded by any principle of law from permitting it to regulate the bail which I conceive it proper to require." Similar proofs were held admissible in Texas.' What state of facts is necessary to bring the case within the constitutional prohibition cannot be easily defined. 1 2 Str. 751. Rex v. Parnham, Cunningham Rep. 96. 31 Str. 546. 4 T. U. P. Charlton, 184. 5 Yarborough v. The State, 2 Texas, 519. In New York in The People v. Beigler, 3 Parker C. R. 316, it was held that upon a question of bail before indictment upon charge of 1urder where the accused, having been committed by the coroner, is brought before a justice of the Supreme Court on habeas corpus, examinations before the coroner may and should be looked into, to ascer It is said to be "a safe rule, where a malicious homicide is charged, to refuse bail in all cases where a judge would sustain a capital conviction if pronounced by a jury on such evidence of guilt as was exhibited to him on the hearing of the application to admit to bail, and in instances where the evidence of the commonwealth is of less efficacy to admit to bail." 3. Inquiry after indictment. The grand jury acts upon evidence taken usually viva voce, always in secret and never preserved; the evidence, therefore, does not admit of that summary revision which is applied to coroners' inquests and the proceedings of *committing [439 magistrates, where the evidence is for the most part reduced to writing. At common law, however, the court sometimes admitted the prisoner to bail after indictment, and it is said, "The court will sometimes examine by affidavit the circumstances of a fact on which a prisoner brought before them by an habeas corpus had been indicted, in order to inform themselves, on examination of the whole matter, whether it be reasonable to bail him or not. And agreeably hereto, where one Jackson, who had been indicted of piracy before the sessions of admiralty on a malicious prosecution, brought his habeas corpus in said court in order to be bailed, the court examined the whole circumstances of the fact by affidavits, upon which it appeared that the prosecutor himself, if any one, was guilty, and carried on the present prose tain whether a crime had been committed, and if so, the strength of the proofs in support of it; and if such examinations show that the crime, if any, does not exceed the grade of manslaughter, and a fair doubt exists whether the defendant has committed any felony, bail should be taken. On return to a writ of habeas corpus issued to inquire into the cause of detention, after commitment by a magistrate and before indictment, additional proof may be received by the judge for the purpose of enabling him to decide upon the legality of the detention. People v. Richardson, 4 Parker C. R. 656. 1 Commonwealth v. Keeper of Prison, 2 Ashm. 227. It seems that in Missouri no person can be discharged from an imprisonment by habeas corpus, who is imprisoned on an indictment. In matter of Spradlend, 38 Mo. 547. 3 1 Chit. Cr. Law, 129; The People v. McLeod, 1 Hill, 377. cution to screen himself; and thereupon the court, in consideration of the unreasonableness of the prosecution and the uncertainty of the time when another session of admiralty might be holden, admitted the said Jackson to bail, and committed the prosecutor till he should find bail to answer the facts contained in the affidavits.” In some of the United States the indictment has been held to preclude all inquiry as to the guilt or innocence of the accused, whether with a view to discharge or bail. In Louisiana, in the case of The Territory v. Benoit,' the grand jury had found an indictment against the de440] fendant for an assault with *intent to murder, then a capital offence. A motion having been made to bail him, the court said: "It cannot be done. Bail is never allowed in offences punishable by death, when the proof is evident or the presumption great. On a coroner's inquest finding a person guilty of a capital crime; the judges have often looked into the testimony which the coroner is bound to record, and when they have been of opinion that the jurors had drawn an illogical conclusion, admitted the party to bail. But as the evidence before the grand jury is not written, and cannot be disclosed, the same discretion and control cannot be exercised, and the judges cannot help considering the finding of a grand jury as too great a presumption of the defendant's guilt to bail him." In North Carolina, in the case of The State v. Mills,' Ruffin, J., said: "After bill found, a defendant is presumed to be guilty to most, if not to all purposes, except that of a fair and impartial trial before a petit jury. This presumption is so strong that in the case of a capital felony, the party cannot be let to bail." In Iowa, in the case of Hight v. U. S.,' the court say: "A prisoner under an indictment for murder cannot, as a matter of right, claim to be admitted to bail on habeas 12 Hawk. P. C., ch. 15, sec. 79. ខ 1 Martin Rep. 142. 32 Dev. Rep. 421. |