Fischer v. Ball, 217

• Citation: 129 A.2d 822,212 Md. 517
• Decision Date: 14 March 1957
• Docket Number: No. 217,217
• Parties: Francis A. FISCHER v. J. Lee BALL, Sheriff, Prince George's County, Maryland.
• Court: Court of Appeals of Maryland

Page 517

212 Md. 517

129 A.2d 822

Francis A. FISCHER v. J. Lee BALL, Sheriff, Prince George's County, Maryland.

No. 217.

Court of Appeals of Maryland.

March 14, 1957.

Joseph B. Simpson, Jr., Rockville (A. Gwynn Bowie and Oscar R. Duley, Upper Marlboro, on the brief), for appellant.

James H. Norris, Jr., Spec. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Blair H. Smith, State's Atty. Prince George's County, Upper Marlboro, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

BRUNE, Chief Judge.

Francis A. Fischer, the appellant, was arrested on a charge of murder. On August 14, 1956, which was prior to his indictment, he was released on bail of $8,000 by the Circuit Court for Prince George's County. Subsequently he was indicted for murder. Thereafter, when arraigned on October 15, 1956, he entered pleas of (1) not guilty and (2) of not guilty by reason of insanity at the time of the commission of the alleged crime. After the arraignment he was denied bail. He then sought to obtain his release on bail through habeas corpus proceedings. A hearing was held on his petition on October 18, 1956, at the conclusion of which he was again denied bail and was remanded to the custody of the appellee, who is the Sheriff of Prince George's County. Fischer sought and was granted leave to appeal from the order denying bail and remanding him to custody. His appeal was advanced for argument in this Court.

The indictment against Fischer is in a form authorized by statute, Code 1951, Article 27, Section 710. Under such an indictment, a defendant may be found guilty of murder in the first degree. If so (unless there is a jury trial and the jury adds to its verdict the words 'without capital punishment'), the death penalty may be imposed. The case is, therefore, a capital case, notwithstanding that, under this form of indictment, the defendant, if convicted, might be found guilty of an offense (second degree murder or manslaughter) not carrying the death panalty.

The appellant contends (1) that he is entitled to release on bail as a matter of right and (2) that even if the matter lies in the discretion of the trial judge, it was an abuse of such discretion to deny him bail.

The case seems to be one of first impression in this Court, and there is no controlling statute.

Stephen, in his History of the Criminal Law of England (1883), Vol. I, page 233, states that: 'The right to be bailed in certain cases is as old as the law of England itself, * * *.' It was first dealt with by statute in 1275 (3 Edw. 1, c. 12), which dealt with prisoners being admitted to bail by the sheriff; but as time went on, the powers of the sheriff were transferred to justices of the peace. The latter were authorized to admit to bail persons arrested on suspicion of felony. By the time of the enactment of two statutes dealing with bail in the reign of Philip and Mary (1 & 2 P. & M., c. 13 (1554) and 2 & 3 P. & M., c. 10 (1555), the power to admit to bail which the sheriffs once had was exercised by justices of the peace. All three of the statutes referred to (except for certain relatively minor provisions of the first of them) are among the British Statutes in force in Maryland. (See Alexander, British Statutes in Force in Maryland, Coe's Ed., Vol. 1, 74, 489, 495.) As a result of these statutes the law of Maryland at the time of the Revolution was substantially the same as that of England, as stated in Blackstone's Commentaries, Vol. IV, (1769), pp. 295-297, as to the cases in which justices could admit a prisoner to bail before trial and those in which they could not. See also Latrobe's Justices' Practice, 2nd Ed. (1835), §§ 1577-1582. Among the cases in which justices could not grant bail were and are cases of murder. Blackstone states that 'no justice of the peace can bail, 1. Upon an accusation of treason; nor 2. Of murder; nor, 3. In case of manslaughter, if the prisoner be clearly the slayer, and not barely suspected to be so; or if any indictment be found against him; * * *.' Latrobe, § 1577, apparently referring to a later edition of Blackstone, but citing 4 Bl. Comm. 298 as his authority, lists murder and homicide as instances in which a justice of the peace cannot admit the accused to bail and says this as to homicide (other than murder): 'Homicide, if the person be clearly the slayer, and not merely suspected to be so: It appears that if the killing has been by misadventure, or in self defence, a justice may safely liberate the party on his finding sufficient sureties.'

Blackstone states (op. cit., p. 296) that: 'Lastly, it is agreed that the court of king's bench (or any judge thereof in time of vacation) may bail for any crime whatsoever, be it treason, murder or other offense, according to the circumstances of the case.'

Code 1951, Article 42, Section 14, dealing with habeas corpus proceedings, after providing for the release of a person found to be unlawfully detained, continues: 'or if the court of judge shall deem his detention to be lawful and proper he shall be remanded to the same custody, or admitted to bail if his offense be bailable, and if bailed the court or judge shall take a recognizance to answer in the proper court and shall transmit the same to such court.' Neither this Section nor Section 41 of Article 26 of the Code 1951, which, inter alia, authorizes a judge to fix bail for any person arrested on an indictment and imprisoned during a recess of the court 'if it be a bailable case,' undertakes to define what is a bailable case. There is no statute applicable to the powers of a judge to admit an accused person to bail comparable to the Statute of Westminster the First, 3 Edw. 1, c. 12, referred to above, which defines the cases in which a justice of the peace may or may not grant bail. Nor does our Constitution deal with that subject. It says only, Article 25 of the Declaration of Rights: 'That excessive bail ought not to be required * * *.'

The subject has been surveyed by Professor Orfield in his work on 'Criminal Procedure from Arrest to Appeal', published in 1947 by the New York University Press under the auspices of The National Conference of Judicial Councils as a part of the Judicial Administration Series. Chapter III is devoted to the subject of 'Bail', and the portions directly pertinent to this case will be found at pp. 107-113. Professor Orfield states that thirty-five states have constitutional provisions and one has a statute which 'have altered the common law and guarantee that 'All persons shall be bailable by sufficient sureties except for capital offenses where the proof is evident or the presumption great." Four states, he says, except only murder and treason from the constitutional guarantee. He then lists Georgia, Maryland and New York as having statutes which provide that bail is a matter of right in misdemeanor cases. The existence of such a statute would at least suggest an implication that the law is otherwise with regard to felonies. However, Professor Orfield does not cite the Maryland statute to which he refers. The only statute of the kind that has come to our attention is not a statewide Act, but is a Public Local Law applicable to Baltimore City, codified as Section 193 of Flack's 1949 Edition of such laws, which was first enacted as a part of Chapter 138 of the Acts of 1898, and was slightly amended in 1941. This pertinent Section deals with the powers and duties of police magistrates of the City of Baltimore with regard to bail. It requires them to admit to bail all persons charged with misdemeanors not punishable by confinement in the penitentiary, prohibits them from accepting 'bail for persons charged with manslaughter [other than manslaughter arising from the operation of a motor vehicle], murder or any offense the punishment for which may be death', and gives them discretionary power to release on bail persons charged with other felonies or with misdemeanors not subject to punishment by confinement in the penitentiary. Our researches have disclosed no comparable statewide, ¹ nor any comparable local statute applicable to Prince George's County. None of the provisions of Chapter 138 of the Acts of 1898 undertakes to specify the kinds of cases in which the Criminal Court of Baltimore (which has jurisdiction in criminal cases corresponding to that of the Circuit Courts of the several Counties) shall or may admit to bail persons charged with criminal offenses.

Hochheimer on Criminal Law, 2nd Ed., Sec. 78, p. 94, states: 'The superior courts may admit to bail in all cases. In capital cases, 'if the proof is evident and the presumption of guilt great,' bail should be denied by the courts.' This statement of the rule is consistent with both the common law rule and the rule prevailing in those States which, by constitution or statute, allow bail in all cases, other than capital cases in which the proof is evident or the presumption of guilt is great. See Orfield, op. cit., pp. 108-109; 8 C.J.S., Bail, § 34 b(2)(b); 6 Am.Jur. (Rev.Ed.), Bail and Recognizance, Sec. 29; Annotation, 39 L.R.A.,N.S., 752, at page 754; Annotation on 'Rape As Bailable Offense', 118 A.L.R. 1115. There is, however, a division of opinion as to what is sufficient to constitute evident proof or a great presumption of guilt, and as to who must bear the burden of proof with regard thereto.

In three States, as Orfield points out, the indictment alone is considered conclusive in meeting the test of sufficiency of proof, in seven it is...