State v. Pett

• Citation: 92 N.W.2d 205,253 Minn. 429
• Decision Date: 16 September 1958
• Docket Number: No. 37672,37672
• Parties: STATE of Minnesota, Plaintiff, v. Robert F. PETT, Defendant.
• Court: Supreme Court of Minnesota (US)

Page 205

92 N.W.2d 205

253 Minn. 429

STATE of Minnesota, Plaintiff, v. Robert F. PETT, Defendant.

No. 37672.

Supreme Court of Minnesota.

Sept. 16, 1958.

Syllabus by the Court

1. Where the constitution uses words having a well-defined legal meaning, the courts have no right to substitute other words having a different meaning.

2. A capital offense is one which may be punished by death.

3. Minn.Const. art. 1, § 7, provides that all persons shall, before conviction, be bailable except for capital offenses. When capital offenses were abolished, all persons were entitled to bail before conviction.

Martin L. Stahlke, County Atty., Chaska, for plaintiff.

Daniel S. Feidt and Robert I. Lang, Minneapolis, for defendant.

KNUTSON, Justice.

Defendant was indicted by the grand jury of Carver County of murder in the first degree. His application to the district court for bail was denied. He then applied to this court to be released on bail. He has not yet been tried and is confined in the county jail in Carver County.

It is the contention of defendant that he is entitled to be released on bail as a matter of right. The state contends and the trial court held that the trial court in its discretion may deny bail to a defendant charged with the crime of murder in the first degree.

Minn.Const. art. 1, § 7, M.S.A., as far as material here, reads:

'* * * All persons shall before conviction be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great; * * *.'

M.S.A. § 629.52, which has remained unchanged since we abolished capital punishment, as far as material, reads:

'* * * A person charged with an offense punishable by death shall not be admitted to bail if the proof is evident or the presumption great, * * *.'

Capital punishment was abolished in this state in 1911. L.1911, c. 387.

The argument of the state, adopted by the trial court, is that, inasmuch as murder in the first degree was the only crime punishable by death at the time we abolished capital punishment, the constitution had reference to the offense rather than to the punishment and that murder in the first degree still is murder in the first degree; hence that the trial court now has the same discretion in denying bail to a defendant charged with that offense as it had when the conviction was punishable by death. While there is logic to this argument and the result may well be a desirable one, it is untenable from a constitutional standpoint. In essence, what the state asks us to do is to construe the constitution to read 'except for murder in the first degree' instead of 'except for capital offenses.'

From earliest times the term 'capital offense' has had a well-defined meaning. ¹ Black, Law Dictionary (3 ed.) p. 275, defines it as follows:

'* * * A capital case or offense is one in or for which the death penalty may, but need not necessarily, be inflicted.'

We think that there is no quarrel with the definition of what is a capital offense. Our constitution dealt specifically with the matter of bail. It left it to the legislature to define what was a capital offense. When we abolished the death penalty for murder in the first degree, there no longer was any capital offense here. Our constitution has never been amended to keep pace with the change, nor has our statute been so amended. Of course, an amendment of the statute without an amendment of the constitution would be ineffective to deprive a defendant of rights which he is guaranteed under our bill of rights.

At common law, the granting of bail was a matter of discretion with the judges. When the bill of rights in our United States Constitution was adopted, we followed largely the common law, simply providing that excessive bail should not be required. ² Of the original 13 states, some adopted the same language as is used in U.S.Const. Amend. VIII, providing simply that excessive bail should not be required. ³ Some of the states went further and provided that 'All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great.' ⁴ Still others added one more limitation that 'All prisoners shall, Before conviction, be bailable by sufficient sureties, except for capital offenses, where the proof is evident, or the presumption great.' ⁵ (Italics supplied.)

As new states were admitted to the Union, many, including Minnesota, adopted provisions similar to those found in Pennsylvania or Connecticut and South Carolina. The case of Commonwealth v. Lemley, 1862, 2 Pittsb. Pa. 362, 363, is an illustration of the early understanding of the courts of the meaning of the language used in these constitutional provisions. In that case the court said:

'At common law, bail is a matter of descretion with the judges. The Court of King's Bench had an unlimited power of admitting to bail for all offences, including treason and murder; but bail was not demandable as a right. Of course, the judicial discretion was exercised according to established rules. * * *

'* * * In Pennsylvania bail is not a matter of discretion; it is an absolute right. It is a right guaranteed by the fundamental law of the state; and where, by that law, a prisoner is entitled to the right, no power exists anywhere to deprive him of the full benefit of it. It is not necessary to refer to the Act of 1705. The Constitution itself defines the right. The clause in the Constitution of 1798, copied into our present Declaration of Rights, provides that 'all prisoners shall be bailable, by sufficient sureties, unless for capital offences where the proof is evident or the presumption great.' What is a capital offence within the meaning of this clause? Plainly, an offence for which the death penalty is inflicted--a felony of death.'

Rhode Island, in its constitution of 1843 and its present constitution (art. 1, § 9), went one step further and provided that 'All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by death Or by imprisonment for life, when the proof of guilt is evident or the presumption great.' (Italics supplied.)

When the Minnesota constitution was drafted, the provisions of the constitutions of states admitted prior to Minnesota were available, and we must assume that they were carefully studied and compared. The language of Minn.Const. art. 1, § 7, no doubt has come down to us from one of the original states of the Union in which we find identical language, through other states admitted prior to Minnesota which had copied this provision from one of the original states. It must be assumed that the provision we adopted was carefully selected from among the various provisions dealing with the subject of bail found in the constitutions of states already admitted to the Union.

Where words used in our constitution have a clear and well-defined meaning, there is no room for construction. Neither the courts nor the legislature have a right to substitute for words used in the constitution having a well-defined meaning other words having a different meaning. That is exactly what we would be doing were we to substitute 'murder in the first degree' for 'capital offense.' Murder in the first degree is not a capital offense when it cannot be punished by death. The right to amend the constitution rests exclusively with the people, and, if, constitutionally, bail is to be withheld in cases other than capital offenses at the discretion of the trial court, that change must be brought about by an amendment of the constitution. As the constitution now reads, all crimes are bailable.

The question now before us has not been heretofore directly passed upon in this state, but the unanimous holding of courts which have passed upon it is that, when capital punishment was abolished, there no longer were capital offenses and that a constitutional provision such as we have, which has been adopted by many of the states as a part of their bill of rights, gave to all defendants in criminal cases a right to be released on bail.

In Re Perry, 19 Wis. 676 (Reprint pages 711, 712), the Wisconsin court said:

'The court are of opinion that since the abolition of capital punishment in this state, persons charged with murder are in all cases bailable.'

In Re Ball, 106 Kan. 536, 541, 188 P. 424, 426, 8 A.L.R. 1348, 1352, the Kansas court said:

"* * * Since there is now no capital punishment in this state, there are no capital offenses, * * *.'

'The Constitution, which in this respect is self-executing, left the Legislature free to prescribe whatever punishment it saw fit for murder, and all other offenses. The Constitution, however, dealt specifically with the subject of bail, and made all offenses which the Legislature did not see fit to punish capitally, bailable. The meaning of the bill of rights at the time it was adopted cannot be changed without changing the constitution itself. This the Legislature is not competent to do.'

In City of Sioux Falls v. Marshall, 48 S.D. 378, 382, 204 N.W. 999, 1001, 45 A.L.R. 447, 450, the court said:

'By virtue of our constitutional provision (article 6, § 8), and since the abolition of capital punishment, bail before...