In re Thomas
| Decision Date | 04 February 1908 |
| Parties | In re THOMAS et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Upon an application to the Supreme Court for bail, by writ of habeas corpus, after commitment for a capital offense by a justice of the peace, the burden is upon the petitioner to show that he is illegally deprived of his liberty.
[Ed Note.-For cases in point, see Cent. Dig. vol. 5, Bail, § 199.]
If after hearing the whole evidence, introduced on the application for bail, it is insufficient to generate in the mind of the court a reasonable doubt whether the accused committed the act charged, and in doing so they were guilty of a capital offense, bail should be refused.
[Ed Note.-For cases in point, see Cent. Dig. vol. 5, Bail, §§ 200, 201.]
It is not all conflicting exculpatory evidence that will have the effect to raise a reasonable doubt of guilt, and destroy or impair the force of "evident proof" made by inculpatory evidence. It is for the judge or court who hears the testimony to consider the evidence as a whole, and if by the entire evidence a reasonable doubt of the applicant's guilt of a capital offense is not generated the proof is evident and bail should be denied.
[Ed Note.-For cases in point, see Cent. Dig. vol. 5, Bail, §§ 148, 200, 201.]
Application of John F. Thomas and Will Thomas for writ of habeas corpus. Bail refused.
T. J. McMurray, Al J. Jennings, and John H. Burford, for petitioners.
Charles West, Atty. Gen., W. C. Reeves, Asst. Atty. Gen., S. M. Cunningham, Fain & Young, and W. Poindexter, for the State.
This cause is here on a petition for writ of habeas corpus by John F. Thomas and Will Thomas, in which they contend they are unlawfully imprisoned and restrained at Lawton in the common jail of Comanche county, state of Oklahoma, by Rufe Le Fors, sheriff of said county, and one Julian, jailer of said Comanche county jail; that the cause of restraint, according to their best knowledge and belief, is that they have been committed to said Comanche county jail for the crime of murder, without bail, by a justice of the peace sitting as an examining magistrate. Said petitioners further allege that they are innocent of the crime of murder and that the proof, as shown by the record of this cause in the examining trial under which they were committed, shows that the proof against them is not evident nor the presumption thereof great. On this petition a writ of habeas corpus was issued. For his return to the writ Rufe Le Fors, sheriff of Comanche county, state of Oklahoma, shows to the court that he holds the petitioners in his custody and restrains them of their liberty by virtue of a writ of commitment issued by S. Armstrong, justice of the peace in and for the city of Lawton, Comanche county, state of Oklahoma, to him issued and delivered on the 22d day of January, 1908, upon hearing before said S. Armstrong, justice of the peace, in a preliminary trial in said court, charging the petitioners with the crime of murder; that the petitioners were committed to the common jail of Comanche county, Okl., and are being held by him as the duly qualified and acting sheriff of Comanche county, under and by virtue of said commitment; and that he now produces said petitioners in person in this court in obedience to said writ of habeas corpus.
Upon agreement of counsel the case was heard in this court upon the record and testimony introduced at the preliminary examination before Hon. S. Armstrong, justice of the peace within and for the city of Lawton, Comanche county, Okl. The question, then, before the court, is: Are the petitioners entitled to bail upon the showing made at the preliminary examination before the committing magistrate, under section 8, art. 2, of the Bill of Rights of the state of Oklahoma? which reads: "All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great."
The first appearance of the above terms in American statutory or constitutional law seems to have been in a part of article 2 of an Ordinance for the Government of the Territories of the United States North of the River Ohio, which reads as follows: 1 Stat. 52. From this original this language has been copied into most of the state Constitutions and statutes. With the exception that some Constitutions contain only provisions as to "excessive bail," and that others use the words "before conviction," or words of like import, or the words "murder" and "treason," instead of the words "capital offenses," and other slight changes, the language used above is substantially that of all the Constitutions.
The only use of the term, "when the proof is evident or the presumption great," independent of statute or Constitution, we have been able to find in the Reports is in Territory v. Benoit, 1 Mart. (O. S.) 141, by the Supreme Court of Louisiana. The indictment was for a capital offense, and the motion was to have the defendant bailed. The court said: In Hight v. United States, reported in Morris (Iowa) 407, 43 Am. Dec. 111, Mr. Chief Justice Mason, speaking of this provision as it appears in the Ordinance of 1787, says: "The Ordinance of 1787, the benefits of which have been transmitted to us, declares that 'all persons shall be bailable, unless for capital offenses, where the proof shall be evident, or the presumption great.' This is no new provision, but is in express terms incorporated into the Constitutions of at least one-half of the states of the Union, and is the rule of action in all the rest. It is merely declaratory of the common law of the United States.
By the common law all offenses, including treason, murder, and other felonies, were bailable before indictment found. Certain restrictions were, however, imposed upon justices of the peace concerning their right to let to bail; but in the Court of King's Bench bail was not a matter of right in capital felonies, being limited by judicial discretion ex-exercised according to the degree of proof of guilt. Rex v. Marks, 3 East, 157; Ex parte Baronett, 16 Eng. L. & Eq. 361; 2 Hale, P. C. 129. These principles of the common law are materially modified, in all except capital offenses, by our constitutional provision quoted above, and now, instead of all cases being bailable in the discretion of the court and not as a matter of right, under section 17 of the Bill of Rights all persons shall be bailable by sufficient sureties, as a matter of right, except for capital offenses when the proof of guilt is evident or the presumption thereof is great. "If the offense is not shown by evident proof or great presumption to be one for the commission of which the law inflicts capital punishment, bail is not a matter of mere discretion with the court, but of right to the prisoner." Ex parte Bryant, 34 Ala. 270.
The policy pervading our jurisprudence is to commit as little as possible to judicial discretion, presuming that "that system of laws is best which confides as little as possible to the discretion of the judge-that judge is best who relies as little as possible upon his own opinion." In pursuance to this policy, ever since the provision "that all persons shall be bailable by sufficient sureties except for capital offenses, where the proof of guilt is evident or the presumption thereof is great," became a part of the settled constitutional and statutory law of nearly all the states of the Union, the courts have endeavored, with more or less success, to formulate some stable rule to guide their judgment in cases like the one at bar. Thus it was said by the court of common pleas of Philadelphia county in an early case, construing exactly the same provision in the Pennsylvania Constitution: "It is a safe rule, where malicious homicide is charged, to refuse bail in all cases where a judge would sustain a capital conviction if pronounced by a jury on such evidence of guilt as was exhibited to him on the hearing of the application to admit to bail." Com. v. Keeper of Prison, 2 Ashm. (Pa.) 227.
This doctrine is approved in a per curiam opinion in the Matter of Salvador Troia on Habeas Corpus, 64 Cal 152, 28 P. 231, where the court adopts the above excerpt from the Pennsylvania case as part of its syllabus. Simrall, J., in Street v. State, 43 Miss. 1, cites the rule laid down in the same case approvingly, saying: Street v. State, supra, was in the Supreme Court on a writ of error issued to the district court of Yazoo county, and Justice Simrall stated as a reason for adopting the Pennsylvania rule that: "It would be going very far in the appellate court to reverse the judgment of the court who saw, heard, and observed the witnesses." Ohio, in State v. Summons, 19 Ohio, 139, Indiana, in Lumm v. State, 3 Ind. 293, California, in the Matter of Salvador Troia on Habeas Corpus, 64 Cal. 152, 28 P. 231, Texas, in Re Foster, 5 Tex. App. 625, 32 Am. Rep. 577, and possibly one or two other cases, refer to the Pennsylvania case approvingly. But most of these cases...
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