State, Ex Rel., v. Stuart

• Decision Date: 13 December 1933
• Docket Number: 24436
• Citation: 127 Ohio St. 314,188 N.E. 393
• Parties: The State, Ex Rel. Reams, Pros. Atty., v. Stuart Et Al., Judges.
• Court: Ohio Supreme Court

188 N.E. 393

127 Ohio St. 314

The State, Ex Rel. Reams, Pros. Atty., v. Stuart Et Al., Judges.

No. 24436

Supreme Court of Ohio

December 13, 1933

Criminal law - First degree murder - Bail - Jurisdiction to hear and determine application before trial.

Under the provisions of Article 1, Section 9, of the Constitution and the statutes of Ohio, the courts of common pleas have jurisdiction to hear and determine, before trial on the merits, the application of a person, indicted for murder in the first degree, to be admitted to bail. (State, ex rel McClintock, Pros. Atty., v. Diehl, Judge, 115 Ohio St. 454 and proposition two of the syllabus in Kendle v. Tarbell Judge, 24 Ohio St. 196, overruled.)

IN PROHIBITION.

Relator, Frazier Reams, who is the prosecuting attorney of Lucas county, Ohio, invokes the original jurisdiction of this court in prohibition to prevent defendants, who are the judges of the court of common pleas of Lucas county, from proceeding to hear and determine a motion for an order to fix the amount of and to admit to bail one Jacob Sulkin, who is under indictment in said county for first degree murder. Sulkin has pleaded not guilty to the indictment, but has not yet been tried.

The relator alleges that, Sulkin having been indicted for murder in the first degree, the proof of his guilt is evident and the presumption thereof is great, and that under the Constitution and laws of Ohio the said judges are without jurisdiction before trial to determine his application or to admit him to bail.

The relator alleges further that Roy R. Stuart, one of said judges, has stated that, unless prohibited by the order of a court of superior jurisdiction, he will proceed to hear and determine the aforesaid motion.

Defendants herein have demurred generally to relator's petition.

Mr. Frazier Reams, prosecuting attorney, Mr. J. S. Rhine fort and Mr. Arnold F. Bunge, for relator.

Mr. John W. Hackett and Mr. Harry A. Levy, for defendants.

BEVIS J.

That prohibition does not lie to control the discretion of courts or officers is a proposition too well settled to require elaboration. We are not, therefore, concerned with the result of the hearing upon the motion for bail, but only with the jurisdiction of the court of common pleas to hear and decide the motion.

Have the courts of common pleas in Ohio jurisdiction in capital cases to hear and determine before trial applications for bail, or are they precluded, for want of jurisdiction, from admitting to bail under any circumstances any person who is under indictment and awaiting trial for a capital offense?

Under constitutional authority, the Legislature of Ohio has undertaken to deal with this subject. Article IV, Section 4, of the Constitution of Ohio, reads:

"The jurisdiction of the courts of common pleas, and of the Judges thereof, shall be fixed by law."

Section 13435-9, General Code, reads in part as follows:

"In all cases in which an indictment is returned or information filed in the court of common pleas, such court shall require the accused to enter into a recognizance in such an amount as the court shall fix."

Section 13435-2, General Code, reads as follows:

"In cases of felony the amount of the bail shall be fixed by the judge or magistrate, but in cases of misdemeanor such amount shall be fixed by the judge, magistrate or clerk of the court. The amount of the bond shall be fixed with consideration of the seriousness of the offense charged, the previous criminal record of the defendant and the probability or improbability of his appearing at the trial of the cause."

It would thus appear that courts of common pleas have jurisdiction to admit to bail in all cases except those in which these statutes are overridden by the Constitution itself.

Relator in this connection invokes Article 1, Section 9, of the Constitution of Ohio, which says:

"All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great."

Relator's contention, logically developed, seems to be that an indictment for a capital offense in and of itself raises a presumption of guilt so strong as to be conclusive. But, under this construction, the words "where the proof is evident or the presumption great" became mere words of description rather than words of qualification; in effect, surplusage. Such a construction is so contrary to the canon which requires that effect be given, if possible, to all the words of a document, that we are forced to the conclusion that some tribunal must have jurisdiction to determine whether the proof be so evident or the presumption so great as to require the denial of bail.

That this determining tribunal is the court in which the case pends for trial is likewise so obvious a deduction from the Constitution and the statutes that its mere statement without argument would seem sufficient. As put by Judge Matthias in his dissenting opinion in State, ex rel. McClintock, Pros. Atty., v. Diehl, Judge, 115 Ohio St. 454, at page 457, 154 N.E. , 726:

"Who is to decide whether the proof be evident or the presumption great? This question was asked and answered by the Supreme Court in the case of State v. Summons, 19 Ohio 139, as follows:

"`Most undoubtedly, the same authority which prescribes the amount of bail and passes upon the sufficiency of the sureties.'

Suggestion was made in relator's argument that the words "where the proof is evident or the presumption great," may be given effect in authorizing a hearing upon the question of bail after a trial has been had upon the merits. But, according to this argument, refusal of bail would then be governed by the proof, and the presumption would cease to have significance. Plainly, the words in question...