Ex parte Bynum

• Decision Date: 06 March 1975
• Citation: 312 So.2d 52,294 Ala. 78
• Parties: , 71 A.L.R.3d 442 In re Ex parte Hugh Otis BYNUM, Jr., (Petition for Writ of Habeas Corpus). Ex parte Hugh Otis Bynum, Jr. SC 1117.
• Court: Alabama Supreme Court

Page 52

312 So.2d 52

294 Ala. 78, 71 A.L.R.3d 442

In re Ex parte Hugh Otis BYNUM, Jr., (Petition for Writ of Habeas Corpus) Ex parte Hugh Otis Bynum, Jr.

SC 1117.

Supreme Court of Alabama.

March 6, 1975.

James M. Fullan, Jr., and Roderick Beddow, Jr., Birmingham, for petitioner.

No brief from state.

JONES, Justice.

This is a petition for writ of certiorari to the Court of Criminal Appeals to review and revise the decision of that Court, 54 Ala.App. 729, 312 So.2d 52 which denied a writ of habeas corpus on behalf of petitioner, Hugh Otis Bynum, Jr. Bynum was arrested December 6, 1974, on a charge of setting off explosives near a dwelling house in violation of Tit. 14, § 123, Alabama Code. The magistrate issuing the warrant failed to set bail. At a preliminary hearing, December 17, 1974, the Jackson County Court bound Bynum over to await the action of the grand jury without bond. A writ of habeas corpus was sought from the Alabama Court of Criminal Appeals which was denied December 20, 1974. An application for rehearing to that Court was also denied. On January 3, 1975, Bynum filed an application to this Court for a writ of certiorari which was denied; however, petition for rehearing was granted on February 3, 1975. Because of the exigencies of the situation, we forthwith issued a writ of certiorari and fixed bail at $100,000. Our written opinion now follows. ¹

Art. 1, § 16, Alabama Constitution, provides:

'That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great . . .'

See also Tit. 15, § 195, Alabama Code.

It is petitioner's contention that 'capital offenses' involve only those crimes punishable by death; and, because Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), has abrogated the death penalty, there are no longer any capital offenses in Alabama. Therefore, petitioner argues, bail must be granted in his case.

I.

We acknowledge that the United States Supreme Court's decision in Furman declared the death penalty unconstitutional as it was then enforced. The threshold issue is whether, under Furman, bail must be constitutionally granted prior to conviction in 'capital' cases even if 'the proof is evident or the presumption great.' Although this is a case of first impression in Alabama, other jurisdictions have been faced with this question. The majority of these courts have held that offenses which were classified as capital before Furman are still capital, thereby allowing bail to be constitutionally denied for those offenses so classified. People ex rel. Dunbar v. District Court, 500 P.2d 358 (Colo.1972); Wayans v. Wolfe, 30 Conn.Sup. 60, 300 A.2d 44 (1972); State v. Flood, 263 La. 700, 269 So.2d 212 (1972); Blackwell v. Sessums, 284 So.2d 38 (Miss.1973); Hudson v. McAdory, 268 So.2d 916 (Miss.1972); Jones v. Sheriff, Washoe County, 509 P.2d 824 (Nev.1973); In re Kennedy, 512 P.2d 201 (Okl.Cr.1973); Roll v. Larson, 30 Utah 2d 271, 516 P.2d 1392 (1973); State v. Haga, 81 Wash.2d 704, 504 P.2d 787 (1972).

The rationale of these decisions indicates that the gravity of the offense is the distinguishing feature and not the penalty which may be imposed. Following this interpretation, certain crimes for purposes of bail are still classified as capital regardless of whether the death penalty may be invoked.

Other jurisdictions, however, have held that a person charged with a capital offense now has the constitutional right to bail. State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972); Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972); Edinger v. Metzger, 32 Ohio App.2d 263, 290 N.E.2d 577 (1972); Ex parte Contella, 485 S.W.2d 910 (Tex.Cr.App.1972). See Donaldson v. Sack, 265 So.2d 499 (Fla.1972).

These courts define 'capital offense' as one where the penalty of death may be imposed. Thus the effect of Furman, in setting aside the death penalty, has eliminated what was previously designated as a capital offense. In support of this rationale, these courts further reason that, since the purpose of bail is to insure the defendant's attendance at trial, the elimination of the death penalty has lessened his desire to flee.

It is the opinion of this Court that the classification theory followed by the majority of states considering this issue is sound and should be adopted. In reaching this decision, we are aware of prior Alabama cases which interpreted the term 'capital offense' to mean offenses for which the death penalty may be imposed. Lee v. State, 31 Ala.App. 91, 13 So.2d 583 (1943); Ex parte McCrary, 22 Ala. 65 (1853). But these opinions were not written in the context of Furman (which deals solely with the matter of constitutionally permissible punishment), and their application to the classification of capital offenses for the purposes of bail is not here decisive. The only effect of Furman was to eliminate the imposition of the death penalty as it was then enforced, and not to eliminate the classification whereby crimes are categorized as capital for purposes other than punishment.

As this Court stated in Ex parte McCrary, supra:

'The object of making this class of offences an exception (to the constitutional right of bail) doubtless was, to secure the trial of the accused with more certainty than could be effected by mere personal liabilities. These offenses were of so high a grade, that no personal securities were deemed a sufficient guaranty that the offender would be brought to punishment.'

Therefore, in the context here applicable 'offenses of so high a grade' still exist in Alabama, and the denial of bail is not violative of Art. 1, § 16, Alabama Constitution.

II.

The conclusion that 'capital offenses' still exist is not alone dispositive of this case. Our Constitution provides that not only must the offense be capital in nature for bail to be denied, but also the proof must be evident or the presumption must be great. The decisions of this Court have stated that this latter requirement means that the evidence must be 'clear and strong, leading to a well guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered . . .' Ex parte McAnally, 53 Ala. 495 (1875), cited in Lee v. State, 281 Ala. 631, 206 So.2d 875 (1968), and Lee v. State, 267 Ala. 665, 104 So.2d 686 (1958).

It is necessary, therefore, for this Court to subjectively review the evidence to determine if the petitioner would probably be convicted of the crime with which he has been charged and be given the maximum sentence allowable therefor. In this regard, two separate issues are presented for our consideration, either of which may be a basis for granting bail: (1) whether the testimony against the petitioner is sufficiently corroborated to be admissible; and (2) if so, whether under the Constitution, as judicially interpreted, the proof is evident or the presumption great that the defendant probably will be convicted and given the maximum punishment allowable.

A.

According to Billy Ray McCrary, Bynum engaged him to hire a 'hit man' to kill four men, including Loy Campbell who was later seriously and permanently injured by an explosion in his automobile near his home. This testimony of McCrary, as a coconspirator, would be inadmissible unless corroborated. Additional testimony was given by Lt. Marvin Bryant, a state trooper, who stated he overheard electronic eavesdropping another conversation between Bynum, McCrary, and a third party (another state agent), which the State contends amply indicated that Bynum participated with McCrary in the crime for which he was charged. For obvious reasons, we are constrained not to discuss further the details of the evidence. Because of the conclusion which we later reach with respect to the second issue, we will assume, without deciding, that Lt. Bryant's testimony supplies the necessary corroboration of McCrary to render his testimony admissible. Even so, the 'proof is evident or presumption great' test is yet to be met.

B.

Applying that test, from a careful examination of the record, we are not convinced that the quality of proof is sufficient to restrain petitioner of his liberty.

In weighing the testimony (for the limited purpose of bail), we observe that before trial no one can say judicially whether the petitioner is guilty of the crime charged. Nor is it our function to speculate on the State's motive in choosing this particular offense with which to charge the petitioner. Rather, it is our function to review the case in the posture in which it is presented. We now look to that posture as revealed by the record.

The crime charged is based on Tit. 14, § 123, Alabama Code, which, in pertinent parts, provides:

'Any person who wilfully sets off . . . any . . . explosive in, under or dangerously near to . . . any inhabitated dwelling house . . . shall on conviction be punished at the discretion of the jury by death or by imprisonment in the penitentiary for not less than ten years.'

Bynum was not charged under Tit. 14, § 38, for assault with intent to murder (a noncapital offense--two to twenty years); nor was he charged under Tit. 14, § 124, for dynamiting an automobile (a noncapital offense--two to ten years), neither of which is a lesser included offense under Tit. 14, § 123. We look only to the offense charged, an in our opinion the presumption of conviction for this specific crime, And the imposition of the maximum sentence allowed therefor, is not so great as to comport with the constitutional exception for the denial of bail.

The judgment of the Court of Criminal Appeals denying petitioner bail is therefore reversed. The prior order entered by this Court directing that petitioner be released from custody upon his furnishing bail in the sum of $100,000 to be approved by the Judge of the Jackson...