Ex Parte Verden
| Decision Date | 09 February 1922 |
| Citation | 237 S.W. 734,291 Mo. 552 |
| Parties | Ex parte RICHARD VERDEN, Petitioner |
| Court | Missouri Supreme Court |
Writ granted.
Lyons & Ristine for petitioner.
Frank B. Fulkerson, Prosecuting Attorney, and Aull & Aull for respondent.
(1) The Constitution provides that "All persons shall be bailable by sufficient sureties, except for capital cases when the proof is evident or the presumption great." Mo Constitution, art. 11, sec. 24; Kelley's Crim. Law & Proc. (3 Ed.) p. 69, sec. 78; State v. Allen, 275 Mo. 394. (2) The offense with which the prisoner is charged in the indictment is a capital one within the meaning of the Constitution. It may be punishable with death, that is to say, liable to punishment with death. R. S. 1919, sec. 3232; Ex parte Dusenberry, 97 Mo. 507; State v. Gray, 100 Mo. 524; State ex rel. v. County Court, 136 Mo. 326; Ex parte Heath, 227 Mo. 398. (3) The right to bail does not rest in the grace or favor of the court, but upon the uncertainty which may exist as to the prisoner's guilt. Kelley's Crim. Law & Proc. (3 Ed.) p. 71, sec. 81; Ex parte Claunch, 71 Mo. 235. (4) Whether the proof is evident or the presumption great, is a question of fact to be determined by the court upon hearing all the evidence. It is not sufficient that there may be reasonable doubt of the defendant's guilt, for it belongs to the jury on final trial to give the defendant the benefit of such doubt, and not to the court on a motion for bail, unless it is so strong that the presumption of guilt is not great. Kelley's Crim. Law & Proc. (3 Ed.) p. 70, sec. 81; Ex parte Claunch 71 Mo. 235. (5) There may be cases, the circumstances of which would appeal to the sound discretion of the court for the exercise of the power to admit to bail; but this power should be rarely and cautiously exercised. Kelley's Crim Law & Proc. (3 Ed.) p. 71, sec. 82. "Although the court may be of the opinion that the accused would appear for trial, yet, if the 'proof is evident or the presumption great,' that he has committed a capital offense, the court has no power to let him to bail." Kelley's Crim. Law & Proc. (3 Ed.) p. 71, sec. 81; Ex parte Claunch 71 Mo. 233; State v. Summons, 19 Ohio 140; Ex parte Tayloe, 5 Cow. (N.Y.) 39; Reg. v. Barronet, 16 Eng. L. & Eq. 361. (6) The court will not, in general, admit a defendant to bail, on the ex parte testimony which the prisoner may produce in his own behalf, in the absence of any testimony for the State or information as to the facts upon which the prosecution relies. Kelley's Crim. Law & Proc. (3 Ed.) p. 70, sec. 80; 1 Bishop, New Crim. Proc., 257. (7) The indictment for a capital offense furnishes a strong presumption of guilt and that the crime is of the grade charged, and this presumption must be applied in all cases on application for bail. There must be other facts and circumstances which overcome this presumption before the prisoner can be bailed. One or even two mistrials cannot furnish the accused the absolute right to give bail. Ex parte Goans, 99 Mo. 193; Ex parte Alexander, 59 Mo. 598; State ex rel. v. County Court, 136 Mo. 323; State v. Summons, 19 Ohio 140; Kelley's Crim. Law & Proc. (3 Ed.) p. 71, sec. 82. To the above may be added the several applications heretofore made for bail to the criminal, and circuit courts, and court of appeals, all of which were denied and the prisoner remanded. (8) The general rule after indictment in a capital case is that bail will be refused. Ex parte Alexander, 59 Mo. 600. (9) It is said to be a safe rule "to refuse bail in a case of malicious homicide, where the judge would sustain a capital conviction, pronounced by a jury, on evidence of guilt, such as that exhibited on the application to bail; and to allow bail where the prosecutor's evidence is of less efficacy." Ex parte Claunch, 71 Mo. 236; Commonwealth v. Keeper of the Prison, 2 Ashmead (Pa.), 227; Hurd on Hab. Corp. 435; Commonwealth v. Summons, 19 Ohio 141; Kelley's Crim. Law & Proc. (3 Ed.) p. 70, sec. 81; Ex parte Tayloe, 5 Cow. (N.Y.) 39; Reg. v. Barronet, 16 Eng. L. & Eq. 361. It has been many times held by this court that it will not refuse to concur in such conviction unless there be either a total failure of evidence or the evidence is so weak that the necessary inference is that the verdict is the result of passion, prejudice or partiality. State v. Concelia, 250 Mo. 424; State v. Finley, 278 Mo. 474; State v. Reed, 237 Mo. 231; State v. Fields, 234 Mo. 615; State v. Sharp, 233 Mo. 269; State v. Cannon, 232 Mo. 215. (10) The statements of the prisoner are self-serving, made after time for premeditation and design, and not admissible. It does not lie in the mouth or power of a defendant thus to reduce his crime to a bailable offense, nullify the constitutional provision, and secure bail in any case, regardless of the grade of the crime. State v. Strong, 153 Mo. 555; State v. Taylor, 134 Mo. 154; State v. Smith, 114 Mo. 424; State v. Musick, 101 Mo. 274; State v. McKenzie, 228 Mo. 399; State v. Burns, 278 Mo. 446; State v. Thompson, 132 Mo. 322; State v. Hendricks, 172 Mo. 674; State v. Hudspeth, 150 Mo. 27; 1 Wharton, Ev. secs. 259, 260, 261. (11) The evidence exhibited is such that a jury may find deliberation, and premeditation, as well as all other necessary elements of murder in the first degree. The prisoner, however, furnishes a legal equivalent for deliberation and premeditation, by his "lying in wait," which stands in lieu thereof. Riley v. State, 28 Tenn. 644; State v. Taylor, 122 Iowa 125; Anderson, Law Dict., p. 642; State v. Wagner, 78 Mo. 644; R. S. 1919, sec. 3232. (12) The evidence exhibited shows that the prisoner procured and prepared the revolver, left Lexington en route for the Higginsville road, inquiring as he went; stationed himself about two miles southeast of Lexington on the Higginsville road, along which this automobile driven by Trail would return to Lexington; that no one was perceived, in, at or about the road ahead of the auto, until the auto, with driver and the two ladies reached the place where the shooting took place; that the prisoner, with eyes fixed on the driver at the wheel, raised his hand, demanded that the driver "stop that car," repeated in no unmeaning tone, "Stop that car, I say," and immediately as the car passed on began firing, and continued firing until he got the man at the wheel. The evidence exhibited shows the commission of a capital offense; in fact, a "lying in wait," weapon procured and prepared beforehand, waiting at or near the roadside for the approach of the car, a formed design and settled purpose to kill clearly disclosed, and adequate means employed to accomplish the result. R. S. 1919, sec. 3232; Kelley's Crim. Law & Proc. (3 Ed.) p. 417, sec. 474; p. 420, sec. 475; p. 427; sec. 480; State v. Barrington, 198 Mo. 104; State v. David, 131 Mo. 397; State v. Henderson, 186 Mo. 473.
DAVID E. BLAIR, J. James T. Blair, C. J., and Graves and Higbee, JJ., concur; Elder, J., concurs except as to amount of bond, believing it should be larger; Walker, J., dissents; Woodson, J., absent.
OPINIONIn Banc.
Habeas Corpus.
-- This is an original proceeding instituted by petitioner filing his petition for a writ of habeas corpus, in which he alleged he is being unlawfully deprived of his liberty by J. L. Forsha, Sheriff of Lafayette County, in the jail of said county. Our writ issued, and said sheriff has filed his return thereto, and petitioner has filed answer to such return.
From the return of the sheriff it appears that petitioner is being confined by him in the jail of Lafayette County under a warrant based on an indictment filed in the criminal court of said county; that petitioner made application for bail in said criminal court, and after hearing the evidence the court indicated the application would be refused, and petitioner withdrew his application, and successive writs of habeas corpus were applied for and refused by the Circuit Court of Lafayette County and by the Kansas City Court of Appeals on the ground that petitioner stood charged with the crime of murder in the first degree and because the proof was evident and the presumption great.
Petitioner admits that he was indicted for murder in the first degree charged with killing George Trail, and is confined under process of the court issued in pursuance to the finding of such indictment and that he was refused bail by the Circuit Court of Lafayette County and by Kansas City Court of Appeals.
The evidence before us upon which petitioner contends that he is entitled to be admitted to bail is contained in a transcript of the testimony introduced in the Criminal Court of Lafayette County on petitioner's application in that court for bail. It appears from the petition for our writ that all the witnesses whose names are indorsed on the indictment were summoned and testified at said hearing before the said criminal court. The testimony of said witnesses is in substance as follows:
W. A. Eastabrook, a farmer living near the scene of the shooting, testified that he saw Verden a few minutes after the shooting, and Verden said he asked Mr. Trail to stop, and he shot to stop the car and one shot struck him.
Dr. A J. Chalkley testified that he was the first physician called to see George Trail after he was shot; that when he arrived at the scene of the shooting he found George Trail in the front seat of the automobile, with two women in the back seat, and Richard Verden standing by the car in the road. Witness asked what had happened. Dick Verden spoke up and said: And Verden's wife, who was sitting in the car, said: "I hired Mr. Trail to take me to Higginsville; we have been down there and on the way back,...
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