Ex parte Welsh
| Decision Date | 03 June 1942 |
| Parties | EX PARTE GEORGE W. WELSH, JR |
| Court | Kansas Court of Appeals |
PETITIONER RELEASED ON BAIL.
John T Barker, Forest Hanna, August F. Behrendt, Rees Turpin and Gene Brouse for petitioner.
Michael W. O'Hern, Prosecuting Attorney, and John V. Hill Assistant Prosecuting Attorney, for the State.
Roger C. Slaughter for sheriff.
No briefs.
OPINIONOriginal Proceedings in Habeas Corpus.
This is an original proceeding instituted by the petitioner filing his petition for writ of habeas corpus, in which he alleges he is being unlawfully deprived of his liberty by Granville A. Richart, Sheriff of Jackson County, Missouri, by being confined in the jail of said county. Our writ was issued by NICK T. CAVE, one of the Judges of the Kansas City Court of Appeals, the presiding judge of this court not being present in Jackson county upon the presentation of the petition. The sheriff has filed his return thereto.
The sole question is, should the petitioner be admitted to bail? Petitioner is being held under a warrant issued by James J. Hurley, a Justice of the Peace within and for Kaw Township, Jackson County, Missouri, said warrant being issued by virtue of an affidavit and complaint filed before said Justice of the Peace, James P. Hurley, charging the applicant with murder in the first degree. Said Justice of the Peace set applicant's preliminary hearing for June 15, 1942, and denied him bail pending said preliminary hearing and remanded him to jail. Appellant seeks release on bail pending said preliminary hearing.
The facts giving rise to the question now presented may be briefly stated.
On March 9, 1941, in Jackson County, Missouri, one Leila Adele Welsh, a sister of George W. Welsh, Jr., this applicant, was found in her bed brutally murdered. The sheriff of Jackson County and his deputies, and the police officers of Kansas City, made a thorough and searching investigation in an effort to learn the identity of the perpetrator of the murder. This applicant, on many occasions, voluntarily submitted himself to the officers for questioning and voluntarily appeared before a Grand Jury investigating the crime, waived his immunity, and testified before said Grand Jury. He showed a cooperative spirit with the officers in their effort to apprehend the murderer. On January 28, 1942, a Grand Jury returned an indictment against the applicant, charging him with murder in the first degree, and he was duly arrested and has been confined in jail since that time. Upon the motion of this applicant, that indictment was abated by Honorable EMORY H. WRIGHT, one of the Circuit Judges of Jackson County, Missouri, because of improper conduct of said Grand Jury within and without the Grand Jury room. On the same day that said indictment was abated, the Prosecuting Attorney of Jackson County filed a complaint before Joseph J. Dougherty, a Justice of the Peace of Kaw Township, Jackson County, charging the applicant with murder in the first degree. On that complaint, a preliminary hearing was held before said Justice of the Peace, commencing on Monday, May 18, and terminating on May 28, 1942. Many witnesses were presented and testified at said preliminary hearing, both for the State and for the defendant. At the conclusion of said preliminary hearing, the said Justice of the Peace refused to bind the defendant over for trial in the Circuit Court of Jackson County, but on the contrary, discharged and released him. Immediately thereafter, an identical complaint was filed before James J. Hurley, a Justice of the Peace within and for Kaw Township, Jackson County, charging the petitioner herein with murder in the first degree, and as above stated, said Justice of the Peace refused to admit the petitioner to bail pending the hearing on said complaint.
The evidence heard at the preliminary hearing before Joseph J. Dougherty has been filed herein and made a part of the petition for admittance to bail. That evidence consists of some nine hundred typewritten pages and it would serve no useful purpose at this time to discuss in detail such a voluminous amount of evidence. It should be said that there is no direct evidence of defendant's guilt. If the State's evidence is sufficient to warrant a conviction upon a trial, it must be founded entirely upon circumstantial evidence, unless additional facts can be presented by the State other than those presented at the preliminary hearing and now before us.
The bill of rights incorporated in the Constitution of this State, Section 24, Article II, declares:
"That all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great."
A capital offense is one which is punishable--that is to say, liable to punishment--with death. Without doubt, the perpetrator of this murder would be guilty of a capital offense, but that is not the only question confronting us on this application for bail.
For many years, the general rule in Missouri was that bail would be refused after indictment in capital cases because the indictment furnished a strong presumption of guilt, but that principle was overruled by our Supreme Court in banc in Ex Parte Richard Verden, 291 Mo. 552, l. c. 564. In discussing that point, the Supreme Court said:
...
To continue reading
Request your trial