State v. Konigsberg, A--15

CourtUnited States State Supreme Court (New Jersey)
Citation164 A.2d 740,33 N.J. 367
Docket NumberNo. A--15,A--15
Parties, 89 A.L.R.2d 345 STATE of New Jersey, Plaintiff-Appellant, v. Harold KONIGSBERG, Defendant-Respondent.
Decision Date31 October 1960

Page 367

33 N.J. 367
164 A.2d 740, 89 A.L.R.2d 345
STATE of New Jersey, Plaintiff-Appellant,
Harold KONIGSBERG, Defendant-Respondent.
No. A--15.
Supreme Court of New Jersey.
Argued Sept. 12, 1960.
Decided Oct. 31, 1960.

Page 369

[164 A.2d 741] William A. O'Brien, Asst. Pros., Jersey City, for plaintiff-appellant (Lawrence A. Whipple, Hudson County Pros., Jersey City, attorney; Ralph P. Messano, First Asst. Pros., Jersey City, of counsel and on the brief).

Raymond A. Brown, Jersey City, for defendant-respondent (Irving I. Vogelman, Jersey City, on the brief).

The opinion of the court was delivered by


The defendant, who is under indictment for murder, made two applications to the County Court for admission to bail. The first application was denied; on

Page 370

renewal almost six months later, bail was fixed at $25,000. Release was stayed to permit the State to seek leave to appeal. This court granted such leave and continued the stay pending determination of the matter.

In charging the defendant with murder, the Grand Jury utilized the customary short form of indictment which has been in use in New Jersey for many years and which is authorized by the Rules of Criminal Practice, R.R. 3:4--3(b). See Graves v. State, 45 N.J.L. 203 (Sup.Ct.1883), affirmed 45 N.J.L. 347 (E. & A.1883). It simply charges that Konigsberg and others 'on the twelfth day of November, 1958, in the City of Jersey City, in the County of Hudson * * * did wilfully, feloniously and of their malice aforethought kill and murder Joseph E. Barbito * * *.' When the motions for bail were presented neither [164 A.2d 742] party submitted any affidavits or testimony. The Prosecutor made certain representations in open court as to facts in possession of the State which would be proved at the trial and which in his judgment would warrant a jury verdict of first degree murder. The sufficiency and competency of oral representations in this type of proceeding will be considered hereafter. Our attention shall be devoted first to the more fundamental legal problems.

At common law in England and in this country, including New Jersey, the grant of bail in all cases rested in the discretion of the courts. State v. Rockafellow, 6 N.J.L. 332 (Sup.Ct.1796); State v. Capawanna, 3 N.J.Misc. 876, 130 A. 278 (O. & T.1925); Fischer v. Ball, 212 Md. 517, 129 A.2d 822 (Ct.App.1957); 4 Blackstone's Commentaries 298, 299 (4th ed. 1899); 2 Hale's Pleas of the Crown 129, 130 (First Amer. ed. 1847); 1 Chitty, Criminal Law 97 (2d ed. 1836); Annotation 39 L.R.A. (New Series) 752 (1912); 6 Am.Jur., Bail and Recognizance § 24; and see, N.J.S.A. 2A:67--14(c). The authority to do so seems to have been considered inherent. State v. Rockafellow, supra; Principe v. Ault, 62 F.Supp. 279 (D.C.Ohio 1945). Probably because judges exercised their discretion adversely to the

Page 371

accused so frequently (see Ford v. Dilley, 174 Iowa 243, 156 N.W. 513, 525 (Sup.Ct.1916); Orfield, Criminal Procedure From Arrest to Appeal 104 (1947)), the people of various states of the Union began to include liberal provisions relating to bail in their Constitutions. The first instance occurred in Connecticut in 1818 and the language employed set the pattern for the organic law of all states which later dealt with the subject. Article 1, section 14, said:

'All prisoners shall, before conviction, be bailable by sufficient sureties, except for capital offenses, where the proof is evident, or the presumption great.'

Since that time, 40 states, including New Jersey, have adopted substantially the same clause restraining and controlling judicial discretion, thus safeguarding individual freedom prior to criminal conviction. In re Corbo, 54 N.J.Super. 575, 583, 149 A.2d 828 (App.Div.1959); Index Digest of State Constitutions, Columbia University 48 (2d ed. 1959); Code of Criminal Procedure, American Law Institute 338, 341 (1930).

The provision first appeared in a constitution of our State in 1844. The Constitution adopted in that year contained precisely the same language as that of Connecticut. Article 1, para. 10. It is interesting to note that in the minutes of the Convention a motion was made to strike out everything after the word 'offenses' 'so as to prohibit entirely the admission to bail, of persons charged with capital offenses.' It was defeated. Proceedings of the New Jersey State Constitutional Convention of 1844, p. 157. The 1947 Constitution repeats the 1844 provision verbatim.

As a consequence of the Constitution the right of the individual to bail became a basic one. Now the courts are under a mandate to allow bail in all criminal cases, including capital offenses, i.e., those for which the death penalty may be imposed (State v. Williams, 30 N.J. 105, 125, 152 A.2d 9, 19 (1959)), excluding only those instances of capital offenses 'when the proof is evident or presumption great.'

Page 372

It thus appearing that a person accused of a capital offense is entitled to bail unless the proof is evident or the presumption great against him, we come to the principal questions to be resolved. When an application for such conditional release is made, on whom does the burden rest of persuading the trial court that the case is within or without the exception? And in that connection what is the probative force of the indictment?

Attempts to solve these problems in other jurisdictions have produced conflicting results. The decisions fall into three categories: (1) the burden is on the state to adduce some facts in addition to the indictment[164 A.2d 743] in order to satisfy the court that the case against the accused meets the constitutional requirement; (2) the indictment is Prima facie evidence of a capital offense within the constitutional exception and therefore the burden is on the defendant to demonstrate that the proof is not evident nor is the presumption great against him; and (3) the indictment is conclusive against the allowance of bail. In re Corbo, supra at pp. 583--584 of 54 N.J.Super., at p. 833 of 149 A.2d; Ford v. Dilley, supra, containing an exhaustive and well reasoned treatment of the subject; Ex parte Landers, 110 Tex.Cr.R. 604, 9 S.W.2d 1106 (Ct.Cr.App.1928); Ex parte Ray, 86 Tex.Cr.R. 582, 218 S.W. 504 (Ct.Cr.App.1920); Ex parte Newman, 38 Tex.Cr.R. 164, 41 S.W. 628 (Ct.Cr.App.1897); Commonwealth v. Stahl, 237 Ky. 388, 35 S.W.2d 563 (Ct.App.1931); State ex rel. Murray v. District Court, 35 Mont. 504, 90 P. 513 (Sup.Ct.1907); State v. Kauffman, 20 S.D. 620, 108 N.W. 246 (Sup.Ct.1906); Annotation 39 L.R.A. (New Series), supra; Orfield, supra 108, 109; 'The Administration of Bail,' 41 Yale L.J. 293 (1931); A.L.I. Code of Criminal Procedure, supra, Commentary to Section 68.

In searching for the just rule to be employed on applications for bail, certain immutable factors must be recognized. Bail is a constitutional right, one which the judiciary must honor in all criminal cases, even murder,

Page 373

unless the proof is evident or the presumption great. Release on bond is a concomitant of the presumption of innocence. Refusal of freedom in violation of the mandate of our organic law would constitute punishment before conviction, a notion abhorrent to our democratic system. The underlying motive for denying bail in the prescribed type of capital offenses is to assure the accused's presence at trial. In a choice between hazarding his life before a jury and forfeiting his or his sureties' property, the framers of the Constitution obviously reacted to man's undoubted urge to prefer the latter. State v. Williams, supra at P. 125 of 30 N.J., at page 19 of 152 A.2d. But when it does not appear on the facts adduced on an application for bail in a particular case that the defendant is reasonably in danger of a conviction of murder in the first degree, not only is the strong flight urge missing, but the basic right to conditional release is imperatively present.

The first matter to be appraised in a proceeding for bail is the indictment. In the light of the Constitution and the traditional methods of administration of the criminal law in New Jersey the indictment, representing as it does only a formal charge, should not be regarded as sufficient to demonstrate that the proof of a capital offense is evident or the presumption great. Nor do we believe it should be deemed vested with sufficient Prima facie force to...

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38 cases
  • State v. Ravenell
    • United States
    • United States State Supreme Court (New Jersey)
    • July 31, 1964
    ...State's case would independently support a denial of bail within the procedures and principles set forth in State v. Konigsberg, 33 N.J. 367, 164 A.2d 740, 89 A.L.R.2d 345 (1960). No appellate review was sought before trial and at oral argument counsel for Ravenell conceded that after trial......
  • State v. Carroll, DOCKET NO. A-0152-18T6
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    • New Jersey Superior Court – Appellate Division
    • November 8, 2018
    ...460, 493 A.2d 1217 (1985) (noting that a "fair likelihood" of conviction increases the "urge to abscond") (quoting State v. Konigsberg, 33 N.J. 367, 377, 164 A.2d 740 (1960) ). Also, if the weight of the evidence is weak, then a court may conclude it is less likely a defendant actually comm......
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    • Court of Appeals of Arizona
    • February 26, 2004
    ...Innocence: The Constitutionality of Capital Child Rape Statutes, 45 ARIZ. L.REV. 197, 200, 210-12 (2003). 9. Cf. State v. Konigsberg, 33 N.J. 367, 164 A.2d 740, 742 (1960) (discussing early origins of phrase), modified and overruled on other grounds, State v. Engel, 99 N.J. 453, 493 A.2d 12......
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    • June 13, 1985
    ...dealt with the broad question of the standards of admissible evidence at bail hearings in capital cases, particularly State v. Konigsberg, 33 N.J. 367, 164 A.2d 740 (1960), and State v. Obstein, 52 N.J. 516, 247 A.2d 5 On January 18, 1985 James McFadden and the brothers William and Herbert ......
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