Ex parte Fortenberry

Bail. Not in all cases a matter of right. Acts 1875, p. 79, § 2, which authorizes the jury in capital cases to declare the penalty shall he imprisonment for life, does not make bail in all cases a matter of right, under § 8, art. 1, Constitution.

Appeal from the decision of Hon. T. B. Graham, Chancellor of the Eighth District of the State of Mississippi, denying bail. Unless the prisoner is guilty of a capital offence of which the proof is evident or the presumption great, he is entitled to bail as a matter of right. Const. Bill of Bights, § 8 ; Wray v. State, 30 Miss. 673. By a capital offence, we understand one punishable with death. Bouvier’s Law Dictionary, title “ Capital crime.” Under Code 1871, § 2630, the crime of murder was punishable with death; hence under that law murder was a capital offence. But under the law of 1875, p. 79, it is left to the discretion of a jury to say what the punishment shall be ; so that even if one be found guilty of murder, the offence may be not capital. As to whether the offence is capital, then, rests wholly in the discretion of a jury. Can murder be declared a capital offence, when, if convicted, the sentence of the law is not death ? Can the presumption be great that it is a capital offence, when it rests in the discretion of a jury to say whether it is or not? Under the present law, it is impossible to bring any case within the constitutional requirement; and bail must be in all cases a matter of right. Who is to determine the grade of the offence charged upon the appellant, and how is it to be determined ? The acts of 1875, p. 79, make this the peculiar province of the jury, as they by their “ finding ” fix the punishment, and thereby the grade of the offence. If they, the jury, find the defendant guilty, as charged, and omit the punishment, the court passes the death-penalty. The defendant, then, is found guilty of a capital offence. But suppose, in finding their verdict of guilty, they say that the accused shall be imprisoned for life, can it be said that he was, under the Constitution, guilty of a capital offence? Most assuredly not, for the death-penalty is not inflicted. If, then, the grade of the offence is to be determined only by the jury, can a court, by its ipse dixit, deprive a citizen of this right ? In view of the above, we believe the only question before the Chancellor was, and before this court is, as to the amount of bail necessary to secure the appearance of the appellant before the next Circuit Court, regulated, of course, by his ability pecuniarily, and the enormity of the charge.' for the State, filed a brief, contesting the position of counsel for the appellant. After two full, fair and thorough investigations, one before a justice of the’ peace and another before a chancellor, both authorized by law to grant bail, if in their judgment the proof was not evident, nor “ the presumption great,” the relator comes to this court asking for bail. Counsel for the relator admit the corpus delicti, but claim that their client is entitled to bail, because the legislature (acts of 1875, p. 79) has abolished capital offences in this State as contemplated by the Constitution. That point was settled by this court against them in the oral opinion delivered on the 5th of June, 1874, in the case of Kx parte Bonnelli, in which it was held that the statute referred to and relied on by counsel does not change the rule on the subject of bail, reaffirming the doctrine and rule announced in Street v. State, 48 Miss. 1, and deciding that this court would not be governed by the contingency of what a jury might do; but, if “ the proof is evident or the presumption great ” that a murder has been committed, bail will be denied. The legislature clearly did not intend by the act of 1875 to abolish or change the degree of the offence, or to say that there could be no such thing as a capital offence in this State, but simply to change the punishment, when, in the judgment of the jury, the facts and circumstances of the case justify it.