In re Losasso

• Citation: 24 P. 1080,15 Colo. 163
• Parties: In re LOSASSO et al.
• Decision Date: 11 October 1890
• Court: Colorado Supreme Court

24 P. 1080

15 Colo. 163

In re LOSASSO et al.

Supreme Court of Colorado

October 11, 1890

Original application for habeas corpus.

It is alleged, among other things, in the petition that Genaro Losasso and Gaetano Losasso are held in custody by the jailer of Arapahoe county upon a pretended indictment charging them with murder in the first degree; that they 'are not guilty of any crime or offense against the laws of this state,' and their imprisonment is illegal and unconstitutional. It is also averred that, though considerable time will elapse before trial can be had upon the pretended indictment, the district court refuses to entertain a motion for bail. The present application to the supreme court is made for the purpose of securing a hearing and favorable action, upon this question.

Edgar Caypless, for petitioner.

H Riddell amicus curiae.

HELM C.J., ( after stating the facts as above.)

The question now presented for consideration is whether or not one charged with murder of the first degree, the punishment for which offense is death, may be admitted to bail after indictment and prior to trial. The practice in the different courts of the state with reference to this subject is not uniform. The present judges of the second judicial district where petitioners are held in custody, are of opinion that the indictment is conclusive against the right to bail, and therefore decline to consider any application therefor. On the other hand, the judges in most, if not all, of the remaining districts frequently entertain such applications hear evidence thereon, and occasionally admit to bail. In view of these conflicting opinions and inconsistent holdings it is important that a definite rule should be announced, so that the procedure in the premises may be uniform throughout the state. It is difficult to determine precisely what the common-law rules on the subject of bail were when provisions, such as will be hereafter considered and are now made constitutional, were first adopted in this country. Mr. Blackstone says: 'It is agreed that the court of king's bench (or any judge thereof in vacation) may bail for any crime whatsoever, be it treason, murder, or any other offense, according to the circumstances of the case.' Book 4, c. 22, p. 299. And he mentions no exception predicated upon the finding of an indictment. But it seems to be well settled that that court, as a matter of course, refused bail in all capital cases after return of a true bill, unless some special circumstance, usually arising subsequent to such action, supervened; also, that in no felony, after indictment, was bail regarded or allowed as a matter of right. The foregoing practice of the court of king's bench, in relation to capital offenses, has become a fixed rule in California, Louisiana, New York, Iowa, and North Carolina. It is held in those states that after indictment for a capital felony the presumption of guilt is so strong as to be conclusive against admission to bail. State v. Mills, 2 Dev. & B. 552; Hight v. U.S., 1 Morris, (Iowa,) *407; Territory v. Benoit, 1 Mart. (La.) 142; People v. McLeod, 1 Hill, 377; People v. Tinder, 19 Cal. 539. We have only discovered two cases in the federal courts directly upon this question, viz., U.S. v. Jones, 3 Wash. C. C. 224, and the celebrated trial of Aaron Burr for treason. In the former case, Jones, one of the defendants, was admitted to bail upon the ground of illness; but as to Reese, another of the defendants, Mr. Justice WASHINGTON disposes of the application, without argument, in the following language: 'The bill of indictment being found, we do not feel ourselves at liberty to inquire into the evidence against it.' Upon return of the indictment against Aaron Burr, application for bail was made to Chief Justice MARSHALL, who presided throughout the trial. The learned chief justice remarked (see page 94) that he 'had never known a case similar to the present when such an examination had taken place.' He also insisted 'upon the necessity of producing adjudged cases to prove that the court could bail a party against whom an indictment had been found.' But on page 95, he is represented as saying: 'I have only stated my present impression. This subject is open for argument hereafter.' Mr. Burr was thereupon committed to jail, and whether subsequently any authorities were cited or arguments heard upon the question we are not advised. No ruling thereon, or further reference thereto, appears in the volume. It is a significant circumstance that there was at this time (A. D. 1807) in Virginia, where Burr as tried, no such constitutional provision on the subject of bail as now exists in that and other states. In U.S. v. Stewart, 2 Dall. 343, (A. D. 1795,) upon this question, language is used which seems to concede the possibility of an examination for admission to bail in such cases, but the point was not necessarily involved, and the decision cannot be considered authority. Precedents from the federal courts upon the subject in hand thus appear to be extremely meager and unsatisfactory; but, so far as the federal cases go, they point to a sanction of the common-law rule. The supreme courts of the following states, however, have promulgated a different doctrine: Alabama, Arkansas, Florida, Illinois, Indiana, Mississippi, Ohio, South Carolina, and Texas. The view adopted in these states is that the indictment, even in capital cases, is simply presumptive evidence of the guilt of the party charged, and that courts should, upon application, hear proofs, and, if the presumption be overcome, admit to bail. Ex parte Hammock, 78 Ala. 414; Ex parte White, 9 Ark. 222; Thrasher v. State, (Fla., 1890,) 7 So. 847, Lynch v. People, 38 Ill. 494; Ex parte Kendall, 100 Ind. 599; Street v. State, 43 Miss. 1; State v. Summons, 19 Ohio 139; State v. Hill, 3 Brev. 89; Yarborough v. State, 2 Tex. 519. Each of the foregoing lists of cases from the state courts might be largely augmented by other decisions of the same tribunals; but, as the opinions referred to express what is believed to be the law at the present time in the states mentioned, additional citations therefrom are deemed unnecessary. Although the above reference to adjudicated cases shows contrariety of judicial opinion on the subject before us, it may fairly be said that the preponderance of authority in this country is against the common-law doctrine. And we think this preponderance of authority is more in harmony with the policy and purposes of modern constitutional and legislative action. It must be borne in mind that the legal penalty for crime is inflicted only upon conviction, and that the object of imprisonment before trial is safe-keeping, not punishment. If the presence of the accused for trial could be otherwise assured, imprisonment would doubtless be entirely dispensed with. So anxious were the framers of the constitutions, state and federal, to guard against abuses in this direction, that they prohibited the exaction of 'excessive bail;' i. e., more than will be reasonably sufficient to prevent evasion of the law by flight or concealment. It is likewise to be remembered that trial does not and cannot, as a rule, so speedily follow presentment, in this and other rapidly growing western commonwealths, as in England, where the common-law doctrine under consideration had its origin. Most, if not all, of the state constitutions, now contain provisions substantially similar to section 19 of our bill of rights, which reads as follows: 'That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident, or the presumption great.' It will be observed that this constitutional provision is entirely silent as to the status of the prosecution. It does not say that upon indictment for a felony, or for a particular kind of felony, the beneficent privilege conferred is withdrawn. On the contrary, its terms are broad enough to include persons accused of any crime whatever, after as well as before indictment. The only exception expressly made has reference to capital offenses, but this exception is wholly inoperative if the proof of guilt be not evident, and the presumption great. Had the framers of the constitution intended to provide that the indictment should be conclusive in capital cases, they would, in all probability, have said so. A simple declaration to this effect would have...