Hudson v. McAdory

• Decision Date: 06 November 1972
• Docket Number: No. 47224,47224
• Citation: 268 So.2d 916
• Parties: Thomas HUDSON v. J. D. McADORY, Sheriff of Hinds County, Mississippi.
• Court: Mississippi Supreme Court

Page 916

268 So.2d 916

Thomas HUDSON v. J. D. McADORY, Sheriff of Hinds County, Mississippi.

No. 47224.

Supreme Court of Mississippi.

Nov. 6, 1972.

Rehearing Denied Dec. 4, 1972.

John R. Poole, W. E. Gore, Jr., Jackson, for appellant.

A. F. Summer, Atty. Gen. by J. B. Garretty, Sp. Asst. Atty. Gen., Jackson, for appellee.

SUGG, Justice.

Appellant was bound over without bail to await the action of the Grand Jury on the charge of murder after a preliminary hearing in the County Court of the First Judicial District of Hinds County, Mississippi. Bail was also denied appellant by a Circuit Judge of Hinds County after a hearing on his petition for a writ of habeas corpus.

Appellant raises two issues on his appeal as follows:

(1) Since the United States Supreme Court has abolished capital punishment under existing statutes, the Mississippi Constitution gives a right to bond in all cases.

(2) Appellant's wife was not a competent witness against him, and without such testimony his guilt is not evident nor the presumption great within the meaning of the Constitution, and he is entitled to bail.

In three cases, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Jackson v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); and Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court in a five to four decision held that the imposition and carrying out of the death penalty in the cases before it constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States. In its order the Court stated:

The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings. (Decision rendered June 29, 1972.) (408 U.S. at 239, 92 S.Ct. at 2727, 33 L.Ed.2d at 350.)

Chief Justice Burger in the opening paragraph of his dissenting opinion summarized the holding of the majority of the Court in their separate opinions as follows:

At the outset it is important to note that only two members of the Court, Mr. Justice Brennan and Mr. Justice Marshall, have concluded that the Eighth Amendment prohibits capital punishment for all crimes and under all circumstances. Mr. Justice Douglas has also determined that the death penalty contravenes the Eighth Amendment, although I do not read his opinion as necessarily requiring final abolition of the penalty. For the reasons set forth in Parts I-IV of this opinion, I conclude that the constitutional prohibition against 'cruel and unusual punishments' cannot be construed to bar the imposition of the punishment of death.

Mr. Justice Stewart and Mr. Justice White have concluded that petitioners' death sentences must be set aside because prevailing sentencing practices do not comply with the Eighth Amendment. For the reasons set forth in Part V of this opinion, I believe this approach fundamentally misconceives the nature of the Eighth Amendment guarantee and flies directly in the face of controlling authority of extremely recent vintage. (Decision rendered June 29, 1972.) (408 U.S. at 375, 92 S.Ct. at 2796-2797, 33 L.Ed.2d at 427-428.)

The decision binds this Court to the extent that statutes of Mississippi providing for capital punishment in certain classes or categories of crime are constitutionally unenforceable.

Appellant contends that since the infliction of the death sentence for murder constitutes cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States, the exception from granting bail for capital offenses contained in Article 3, Section 29 of the Mississippi Constitution of 1890 ¹ is thereby nullified because capital offenses no longer exist. Stated differently, appellant urges that Section 29 should be construed to read, 'Excessive bail shall not be required, and all persons shall, before conviction, be bailable by sufficient sureties.'

Since the establishment of the Mississippi Territory the provision for bail for all persons before conviction except for capital offenses when the proof is evident or presumption great, now appearing in Section 29 of the Mississippi Constitution has been an integral part of the law of this State.

A brief review of history reveals that, by an Act dated April 7, 1798, the Congress of the United States authorized the President to establish in the Mississippi Territory a government in all respects similar to that then exercised in the territory northwest of the Ohio River.

In Street v. State, 43 Miss. 1 (1980), this Court stated:

Perhaps the original of the section in our bill of rights, and in the constitutions of nearly all the states, is a clause in the ordinance of 1787 for the government of the territory northwest of the river Ohio. This ordinance was mainly prepared by Mr. Jefferson, it is said. The words of the ordinance are: 'All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great.' . . . (43 Miss. 1 at 25.)

By Act of Congress of the United States adopted March 1, 1817, the inhabitants of the western part of the Mississippi Territory were authorized to form for themselves a Constitution and state government and to assume a name for the state; that such state when formed be admitted into the union upon the same footing with the original states, in all respects; that a constitutional convention should be held on the first Monday of July, 1817 in the town of Washington to form a constitution and state government.

As authorized by this Act of Congress, a convention was held and the Constitution of 1817 was the result thereof. Section 17, Article 1 of the Constitution of 1817 contained the following provision:

That all prisoners shall, before conviction, be bailable by sufficient securities, except for capital offences, when the proof is evident or the presumption great; and the privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it.

This Court in Street, supra, pointed out that under the common law, the court of kings' bench and the judges authorized to hear and determine a case on habeas corpus had the power and discretion to grant bail to all persons for all offenses, without regard to the degree of the crime or the nature of the punishment. This power to grant bail in a capital case was as unquestioned under the common law as when the punishment did not reach to the life of the accused.

The constitutional provision under consideration in its present form and as originally incorporated in the jurisprudence of the Mississippi Territory changed the common law in two important aspects: (1) Judges could not refuse bail in cases less than capital before conviction, and (2) judges could not grant bail before conviction in capital cases when the proof was evident or the presumption great.

During the time that Mississippi was a territory and at the time of the adoption of the Constitution of 1817 many crimes were punishable by death. See Mississippi Statutes 1816, pages 212, 213, 214, 216, 218 and 220. In all cases punishable by death, no lesser punishment was permitted until 1875 when the Legislature adopted an act authorizing a jury to declare the punishment could be life imprisonment rather than death. ² See Ex Parte Fortenberry, 53 Miss. 428 (1876).

The Legislature has, from time to time, changed the offenses which the punishable by death, and at the time of decision of Furman, supra, the following crimes were punishable by death in Mississippi: Murder, Section 2217 Mississippi Code 1942 Annotated (1956); Unlawful Use of Explosives, Section 2143 Mississippi Code 1942 Annotated (1956); Rape, Section 2358 Mississippi Code 1942 Annotated (1956); Kidnapping, Section 2238 Mississippi Code 1942 Annotated (1956); Treason, Section 2397 Mississippi Code 1942 Annotated (1956); Armed Robbery, Section 2367 Mississippi Code 1942 Annotated (1956); Accessories Before the Fact to the Above Crimes, Section 1995 Mississippi Code 1942 Annotated (1956).

Since the death penalty provision of the Mississippi Homicide Statute is unenforceable under the holding of Furman, supra, there is thrust upon this Court the question of deciding whether or not bail shall be denied before conviction in 'capital offenses when the proof is evident or the presumption great.'

Appellant urges that he is automatically, as a matter of right, entitled to bail before conviction because he is being held on a charge of murder which is no longer a capital offense. We are thus asked to hold meaningless the words 'capital offenses' as they appear in Section 29 of our Constitution. If the words are meaningless in the constitutional provision under consideration, it is equally as logical to hold that said words and similar words are also meaningless as they appear in numerous statutes of this State.

Matters pertaining to procedure, punishment ³ and rights of persons charged with 'capital crimes' or 'capital offenses,' have been adopted from time to time by the Mississippi Legislature. If we hold that the term 'capital offenses' as used in Section 29 of the Constitution has been nullified, unprecedented and unforeseen results would follow in construing the statutory law of this State where the same or similar terms are used. A few of the statutes that would be affected are discussed hereinafter.

If the contention of appellant were followed to a logical conclusion the number of peremptory challenges prescribed by Section 2520 ⁴ Mississippi Code 1942 Annotated (1956) would be reduced from twelve to six, thus taking away from an accused a valuable right.

Section 1795 ⁵ Mississippi Code 1942 Annotated (1956) provides that any person charged with a capital crime or with the crime of manslaughter is entitled to a special venire. Section 2505 ⁶ Mississippi Code 1942 Annotate...