In re Charles E. Ball
Decision Date | 23 March 1920 |
Docket Number | 22,891 |
Citation | 188 P. 424,106 Kan. 536 |
Parties | In re CHARLES E. BALL, Petitioner |
Court | Kansas Supreme Court |
Decided January, 1920.
Original proceeding in habeas corpus.
SYLLABUS BY THE COURT.
CRIMINAL LAW--Bail--Capital Offense--Persons Charged with Murder in First Degree axe Bailable. Murder in the first degree not being punishable capitally, persons charged with that offense are bailable, under the self-executing provision of the bill of rights, that all persons shall be bailable by sufficient sureties, except for capital offenses where proof is evident or the presumption great, notwithstanding the statute of 1911, which provides that persons charged with the crime of murder in the first degree shall not be admitted to bail when the proof is evident or the presumption great.
D. M Dale, S. B. Amidon, S. A. Buckland, H. W. Hart, all of Wichita, and Sam P. Ridings, of Medford, Okla., for the petitioner.
A. M. Jackson, of Winfield, for the respondent.
The petitioner was arrested on a warrant charging murder in the first degree, and at the conclusion of a preliminary examination was bound over to the district court, without bail. The writ of habeas corpus was prayed for to obtain admission to bail, which this court granted.
The territorial crimes act of 1859 contained the following provisions:
The territorial code of criminal procedure contained the following provision:
"Persons charged with an offense punishable with death, shall not be admitted to bail, when the proof is evident or the presumption great; but, for all other offenses, bail may be taken in such sum as, in the opinion of the magistrate, will secure the appearance of the person charged with the offense, at the court where such person is to be tried." (Compiled Laws 1862, ch. 32, § 45.)
These statutes were continued in force in the revision of 1868 (Gen. Stat. 1868, ch. 31, §§ 6, 7, 8; ch. 82, § 53), and until modified as hereinafter stated.
The constitution adopted in 1859, under which the state was admitted to the Union in 1861, contains the following provision:
"All persons shall be bailable by sufficient sureties except for capital offenses where proof is evident or the presumption great." (Bill of Rights, § 9, Gen. Stat. 1915, § 113.)
The legislature of 1907 amended the crimes act by enactment of the following statute:
Following enactment of this statute, persons charged with murder in the first degree were generally admitted to bail. In a few instances bail was refused, and on application to this court bail was allowed as a matter of right, under the provision of the constitution. In 1911, the legislature amended the criminal code by enactment of the following statute:
"Persons charged with the crime of murder in the first degree shall not be admitted to bail when the proof is evident or the presumption great; but for all other offenses bail may be taken in such sum as in the opinion of the magistrate will secure the appearance of the person charged with the offense at the court where such person is to be tried." (Gen. Stat. 1915, § 7962.)
Following enactment of this statute, courts and committing magistrates generally admitted to bail in accordance with the bill of rights, precisely as if the statute had not been passed. In a few instances in which bail was denied, this court granted bail. In order to render inexcusable denial of bail in any murder case, so long as murder is not a capital offense and the constitution remains unchanged, this opinion is published.
The press of more important business prevents the court from assuring itself with certainty of the date of the initial appearance of the provision of the bill of rights in Anglo-American legal history. It is sufficient for present purposes to know that it formed section XI of the "Laws Agreed Upon in England," etc., which accompanied Penn's frame of government for the province of Pennsylvania, to which the illustrious Quaker set his "hand and broad seal, this five and twentieth day of the second month, vulgarly called April, in the year of our Lord one thousand six hundred and eighty-two." (5 Thorpe Am. Ch. and Const., p. 3059.) While the habeas corpus act of three years before, and the bill of rights act of seven years later, dealt with bail, neither one employed the same or equivalent phraseology.
The provision in question appeared in the constitution under which Kentucky was admitted to the Union in 1792, and appeared in form or substance in a majority of the constitutions framed before Kansas became a state. The Kansas bill of rights followed the Ohio model, and the provision was contained in the Ohio constitutions of 1802 and 1851. In all these constitutions the word "capital" had a definite, settled meaning, which was the meaning accorded the word in general usage whenever employed as an adjective qualifying the terms crime, offense, or felony--punishable by deprivation of life. Doctor Johnson's definition is a sentence from Bacon, "That which affects life." The Oxford English dictionary gives many illustrations, extending from 1483 to modern times. Illustrating the present meaning of the word, Webster's New International dictionary and the Century dictionary give quotations from Spenser, Milton, Swift, and Macaulay. Histories of English and American legal institutions and legal textbooks know no other meaning than that indicated, and the same is true of the courts:
(Ex parte McCrary, 22 Ala. 65, 71.)
(Caesar v. State, 127 Ga. 710, 712, 57 S.E. 66.)
(Adams v. State, 56 Fla. 1, 13, 48 So. 219.)
"A capital crime is one punishable with the death of the offender." (Commonwealth v. Ibrahim, 184 Mass. 255, 258, 68 N.E. 231.)
. . . .
...
To continue reading
Request your trial-
Reino v. State
...decision. See In re Tarr, 109 Ariz. 264, 508 P.2d 728 (1973); Baumgarner v. Hall, 253 Ark. 723, 506 S.W.2d 834 (1972); Ex parte Ball, 106 Kan. 536, 188 P. 424 (1920); State v. Pett, 253 Minn. 429, 92 N.W.2d 205 (1958); Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972); State v. Jo......
-
Petition of Humphrey
...Iowa: Iowa Const. art. 1, § 12; State v. Fuhrmann, 261 N.W.2d 475 (Iowa 1978) Kansas: Kan.Const., Bill of Rights § 9; Ex parte Ball, 106 Kan. 536, 188 P. 424 (1920) Kentucky: Ky.Const., Bill of Rights § 16; Commonwealth v. Stahl, 237 Ky. 388, 35 S.W.2d 563 (1931) Louisiana: La.Const. art. 1......
-
People ex rel. Hemingway v. Elrod
...109 Ariz. 264, 508 P.2d 728; State v. Aillon (1972), Conn., 295 A.2d 666; Donaldson v. Sack (Fla. 1972), 265 So.2d 499; In re Ball (1920), 106 Kan. 536, 188 P. 424; State v. Pett (1958), 253 Minn. 429, 92 N.W.2d 205; State v. Johnson (1972), 61 N.J. 351, 294 A.2d 245; Edinger v. Metzger (19......
-
State v. Pray, s. 229-75
...supra; Palmer v. District Court, 156 Colo. 284, 398 P.2d 435 (1965); State v. Pett, 253 Minn. 429, 92 N.W.2d 205 (1958); Ex parte Ball, 106 Kan. 536, 188 P. 424 (1920). The purpose of bail, as presently constitutionally mandated, is to assure the defendant's attendance in court, and cannot ......
-
A Legal and Policy Argument for Bail Denial and Preventative Treatment for Batterers in the United States
...paradigm and a failed strategy. Aggression and Violent Behavior, 12, 658-667. Ex parte Charles E. Ball. (1920). Kansas Supreme Court, 106 Kan. 536, 188 Pac. 424.Fike, L. E. (1999). Illinois enacts laws to further deter and combat domestic battery. Illinois Bar Journal: Illinois Law Update, ......