Tarr, In re

• Decision Date: 20 April 1973
• Docket Number: No. H--640,H--640
• Citation: 109 Ariz. 264,508 P.2d 728
• Parties: In re Seth Ulysses TARR.
• Court: Arizona Supreme Court

Page 728

508 P.2d 728

109 Ariz. 264

In re Seth Ulysses TARR.

No. H--640.

Supreme Court of Arizona, In Banc.

April 20, 1973.

Flynn, Kimerer, Thinnes & Galbraith by Clark L. Derrick, Phoenix, for petitioner.

Leonard C. Langford, Mohave County Atty. by Warner B. Bair, II, Deputy County Atty., Kingman, for respondent.

CAMERON, Vice Chief Justice.

This is a petition for writ of habeas corpus in which the petitioner asked that he be admitted to bail pending trial.

We are called upon to answer only one question and that is: Where the Arizona statute imposing the death penalty has been stricken by the United States Supreme Court, may a person charged with first degree murder, a crime previously punishable by death, be denied admission to bail pending trial on that charge?

The facts necessary for a determination of this matter are as follows. An indictment was returned against the petitioner, Seth Ulysses Tarr, 27 February 1973, by the Mohave County Grand Jury charging the defendant-petitioner with the crime of first degree murder. An application for admission to bail was filed by the petitioner and following a hearing on the application the motion was denied by the trial judge on 28 February 1973. Petitioner is presently incarcerated in the Mohave County Jail in Kingman, Arizona.

The offense for which petitioner was charged, murder in the first degree, is by statute in Arizona punishable by death. §§ 13--451, 452, 453. The Arizona Constitution, Art, 2, § 22, A.R.S., reads as follows:

'Section 22. All persons charged with crime shall be bailable by sufficient sureties, except for:

'1. Capital offenses when the proof is evident or the presumption great.'

The bail provisions of the Arizona Revised Statutes, § 13--1571 et seq., echo the constitutional provision against denying a person bail except in capital criminal cases where the 'proof is evident or the presumption great' that he is guilty of the offense.

It is universally held that a 'capital offense' is an offense for which a sentence of death may be imposed. Ex parte Berry, 198 Wash. 317, 88 P.2d 427 (1939); 8 C.J.S. Bail § 34(1) (1962). Our Rules of Criminal Procedure, 17 A.R.S., also define a capital offense as follows:

'A capital offense, as the term is used in the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death.' Rule 39, Rules of Criminal Procedure, 17 A.R.S.

The United States Supreme Court has abolished the death penalty in statutes like Arizona's Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972), and has therefore abolished 'capital offenses' in Arizona.

Other courts have considered this matter in detail and have reached the conclusion that with the abolishment of the death sentence, a person may not be denied admission to bail:

'In light of this holding, the question which is before the Court is whether, in terms of our Constitution and statute, bail may now be denied in cases in which, prior to the holding in Furman v. Georgia, supra, the death penalty could have been imposed. We conclude that bail may not be denied in such cases.' Ex parte Contella, 485 S.W.2d 910, 911 (Tex.1972).

And:

'* * * The distinction drawn between a verdict of guilt of first degree murder which carried the death penalty and such a verdict which imposed life imprisonment obviously signified that murder which can produce only life imprisonment is not a capital offense, within the meaning of the Constitution.

'In a number of States where the Constitution contained the same provision as ours respecting the nonbailability of capital offenses, the death penalty was subsequently abolished. Efforts were nade in those States to perpetuate the ban on bail on the theory that the nature of the crime remained the same even though it no longer carried the possibility of death, and that exposure to a sentence of life imprisonment justified a holding that the crime...