Ex Parte Dusenberry
| Decision Date | 18 March 1889 |
| Citation | 97 Mo. 504,11 S.W. 217 |
| Parties | Ex parte DUSENBERRY. |
| Court | Missouri Supreme Court |
2. Section 1253 is not unconstitutional in submitting the penalty of death or imprisonment to the discretion of the jury. Should a defendant plead guilty to such charge, the court may assess the punishment, and render judgment by virtue of section 1930, conferring that power "in all cases of judgment by confession."
Habeas corpus.
W. O. Forrist, for petitioner. Atty. Gen. Wood and Sol. Hughlett, for respondent.
The petitioner obtained a writ of habeas corpus from this court with a view to his admission to bail. It appears that he is in custody by virtue of a commitment on a charge of rape. An indictment for that offense has been duly found against him by the grand jury. The case has not reached its first hearing in the circuit court. Having been refused bail by Hon. E. M. HUGHES, as trial judge, after a hearing of some evidence on the subject, defendant seeks to give it here under this writ. By the constitution it is provided that "all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident, or the presumption great." Section 24, Bill of Rights. We are hence to decide whether, under our laws, the petitioner is charged with a "capital offense." His counsel has offered no evidence to remove the presumption arising from the indictment that "the proof is evident, or the presumption great," (People v. Tinder, 19 Cal. 539; Ex parte Vanghan, 44 Ala. 417;) but rests the demand for admission to bail on the theory that the charge is not a capital one, and is therefore bailable as a matter of right. A very ingenious and able argument has been made in support of that theory. We have duly considered it. By our statutes it is provided that every person convicted on this charge "shall suffer death, or be punished by imprisonment in the penitentiary not less than five years, in the discretion of the jury." Rev. St. 1879, § 1253. The offense may therefore be punished with death, but is not necessarily so punishable. A "capital offense" is one which is punishable — that is to say, liable to punishment — with death. This is the substance of the definitions by the lexicographers, both professional and lay....
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State v. Dodson, 37584
...and therefore made all offenses bailable, is a question which has not been addressed in this State. It is true that in Ex parte Dusenberry, 97 Mo. 504, 11 S.W. 217 (1889), and in Ex parte Welsh, 236 Mo.App. 1129, 162 S.W.2d 358 (1942), a capital offense was defined as one which may be punis......
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State v. Tiedt
...1939, Mo.R.S.A.; State v. Bevins, 328 Mo. 1046, 43 S.W.2d 432, 434; State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556, 563; Ex parte Dusenberry, 97 Mo. 504, 11 S.W. 217. No question of reasonable doubt was involved in the matter of assessing the punishment. People v. Krauser, 315 Ill. 485, 14......
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State ex rel. Westfall v. Mason
...1939, Mo.R.S.A.; State v. Bevins, 328 Mo. 1046, 43 S.W.2d 432, 434; State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556, 563; Ex parte Dusenberry, 97 Mo. 504, 11 S.W. 217. No question of reasonable doubt was involved in the matter of assessing the punishment. People v. Krauser, 315 Ill. 485, 14......
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The State ex rel. Orr v. Kearns
... ... violative of Section 30, Article II, of the Constitution ... Young v. Railroad, 227 Mo. 317; Ex parte Dusenbury, 97 ... Mo. 504, 508; Morgan v. Ward, 224 F. 698; In re ... O'Shea, 11 Cal.App. 568; Sheldon v. Hoyne, ... 261 Ill. 222; Arnett ... clause, and a forbidden delegation of legislative power, ... counsel for defendant cites and relies upon Ex parte ... Dusenberry, 97 Mo. 504, and Young v. Railroad, 227 ... Mo. 307; and especially upon what was said in the opinion in ... the latter at page 317: ... ...