State v. Hedges

Citation177 Ind. 589,98 N.E. 417
Decision Date17 May 1912
Docket NumberNo. 22,041.,22,041.
PartiesSTATE v. HEDGES.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Warrick County; Ralph E. Roberts, Judge.

Caleb Hedges was indicted for murder in the second degree, and applied to be admitted to bail. The application was granted, and the State appeals. Affirmed.

Thomas M. Honan, Ora A. Davis, Lindsey & Bock, and Lindsey & Spradley, for the State. Hatfield, Fulling & Hatfield, Roscoe Kiper, and J. M. Kohlmeyer, for appellee.

MYERS, J.

Appellee was indicted for murder in the second degree, and on the day of his arrest filed his application to be let to bail, to which appellant filed answer in general denial, and the matter was heard, and appellee admitted to bail. The issues as claimed by the state on that hearing were: First, whether or not the proof of appellee's guilt was evident, or the presumption strong; and, second, whether on that hearing appellee could, over the objection of the state, introduce the testimony of witnesses who were not before the grand jury, and upon whose testimony the state on the hearing declared it would not rely for a conviction. The errors here relied on and not waived are, admitting in evidence the testimony of six separately named persons who were not witnesses before the grand jury, as specific causes of error, and in sustaining the motion to let appellee to bail.

[1] The position of the state is that, by express constitutional provision, “murder or treason shall not be bailable when the proof is evident or the presumption is strong.” Burns, § 62, Const. § 17, art. 1. The former portion of the same section, however, is that “offenses other than murder and treason shall be bailable by sufficient sureties.” The statute expressly provides that where any person is indicted for murder, he may be admitted to bail “when it appears upon examination that he is entitled to be let to bail.” Burns 1908, § 2025. It has been held that bail is a matter of right upon proper showing. Brown v. State, 147 Ind. 28, 46 N. E. 34; Ex parte Jones, 55 Ind. 176.

[2][3] Upon such application, the indictment by the grand jury stands with all its presumptions in favor of its truth, until its force is broken by a showing that the grand jury acted upon insufficient evidence, and the burden is on the accused of showing that the proof of guilt is not evident, and the presumption of guilt not strong, and upon such application the Supreme Court will weigh the evidence and pass upon it as a trial court. Brown v. State, supra, and cases cited; Ex parte Walton, 79 Ind. 600; Ex parte Sutherlin, 56 Ind. 595; Ex parte Moore, 30 Ind. 197.

[4] The particular objection presented by the state as to the question of practice is that the applicant on the hearing can only introduce the evidence of witnesses upon whose evidence the state relied for conviction. Several of the witnesses, including appellee whose testimony was introduced by him, were not before the grand jury, and objection was made by the state on the ground that they were not witnesses upon whom the state intended to rely for a conviction, upon the theory that such witnesses, and none other, must be introduced. Reliance is here placed upon Ex parte Richards, 102 Ind. 260, 1 N. E. 639; Ex parte Heffren, 27 Ind. 87; Ex parte Sterens, 82 Cal. 245, 23 Pac. 38.

Appellee's position is that the entire question as to whether the guilt is evident, or the presumption strong, is before the court, and that it is not within the power of the state to limit the witnesses who may be examined, because it declares that it does not rely for conviction upon any witness or witnesses offered, and because they were not before the grand jury; that such rule would put it in the power of the state to determine who should or should not testify, and would hamper the court in the determination of the real question for determination, and that neitherthe Constitution nor the statute confines the inquiry to the state's witnesses, nor upon whom it may indicate it relies, nor whether the evidence before the grand jury was sufficient to sustain the charge made, and that any other construction would put it in the power of the state to determine who should be let to bail.

Reliance is here placed upon the case of In re Fraley (1910) 3 Okl....

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