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Ex Parte McAnally.

Bail should be refused in every capital case, where, on the exhibition of the

evidence to him, a judge would sustain a conviction if pronounced by a jury.

THE petitioner, in custody on charge of rape, applied to the pro

1 bate judge for bail, and this being denied, applied to this court.

Hamill & Dickson, for petitioner

John W. A. Sanford, Attorney-General, contra. BRICKELL, C. J. By the common law all offenses, however high, including murder and other felonies, and treason, were and still are bailable, before indictment found; though not as matter of right in cases of capital felonies, but as matter of judicial discretion The facts and circumstances of each particular case regulated in a large degree the exercise of the discretion. Judicial decision established it as a rule, that one accused of a capital felony should be admitted to bail whenever, upon examination of the evidence, the presumption of guilt was not strong. But whether the felony was capital or not, if there was no reasonable doubt of guilt, bail was not allowed. It is said by Hawkins (Pleas of the Crown, B. 2, ch. 15, § 40): “Bail is only proper where it stands indifferent whether the party be guilty or innocent of the accusation against him, as it often does before his trial; but when that indifferency is removed it would, generally speaking, be absurd to bail him.” The evidence producing this indifferency, the legal presumption of innocency was allowed to prevail. In Ex parte Baronnet, 16 Eng. L. & Eq. 365, it is said by ERLE, J.: “ The principle has been fully laid down already, that where a crime is of the highest magnitude, the evidence in support of the charge strong, and the panishment the highest known to the law, the court will not interfere to admit him to bail. Where either of these ingredients is wanting, the court has a discretion which it will exercise.” Mr. Bishop, in his book on “ Criminal Procedure,” says the following statement may be accepted as substantially correct: “When felony was punishable, as of course, by death, if there was reason to believe the party seeking bail was guilty, no bail whatever could be accepted for him; because, in the language of scripture, all that a man hath will he give for his life;' and to take bail, and so let the felon escape, as it was supposed he would do, would be in effect for the court to overrule the law, and accept of a fine instead of the life of the Ex Parte McAnally.

offender, as punishment for the offense.” i Bish. Cr. Pr., & 255. In the People v. Dixon, 4 Park. Cr. Rep. 651, it is said, in case of felony the prisoner is not to be let to bail, as matter of right, and the court shall not bail him unless it appears, upon all the facts, that letting to bail will, in all responsible probability, secure his forthcoming. The probability is deducible from the facts touching his guilt. See, also, People v. Van Horne, 8 Barb. 158; Ex parte Tayloe, 5 Cow. 39; 1 Bish. Cr. Pr., SS 247–264; Ex parte Bryant, 34 Ala. 270.

These principles of the common law are materially changed with us by constitutional and statutory provision. The bill of rights declares: “All persons shall, before conviction, be bailable by sufficient su reties, except for capital offenses, where the proof is evident, or the presumption great.” The statutory provisions are: “A defendant cannot be admitted to bail, where he is charged with an offense which may be punished by death, if the court or magistrate is of opinion, on the evidence adduced, that he is guilty of the offense in the degree punished capitally,” etc. R. C., § 4234. “In all other cases than those above specified, the defendant is, before conviction, entitled to bail as a matter of right.” R. C., § 4235. The policy pervading our jurisprudence is to commit as little as possible to judicial discretion —“that system of law is best which confides as little as possible to the discretion of the judge — that judge the best who relies as little as possible on his own opinion.” Under these constitutional and statutory provisions, bail becomes a matter of right, whether before or after indict. ment found, until conviction is had, in all criminal accusations, unless the offense may be punished capitally. The inquiry in this respect is not whether the punishment which must follow conviction is necessarily death. A felony is here defined as “ a public offense, which may be punished by death, or by confinement in the penitentiary.” With one exception, even when the offense may be punishable with death (R. C., § 3902), it is within the discretion of the jury to impose that punishment, or imprisonment in the penitentiary for life. Hence, it cannot be known, until after conviction, whether death will be the punishment. The question, in legal contemplation, is on an application for bail, therefore, whether the offense is of the character which may be punished capitally. Ex parte McCrary, 22 Ala. 65. Ascertaining that to be the character of the offense imputed to the accused, the next

sionate that the afled capita

Ex Parte McAnally. inquiry is, is “ the proof evident, or the presumption great,” of the defendants guilt. If it be not, whatever may be the probable cause to detain him to answer before a tribunal competent finally to adjudge the inquiry, he is entitled not to a discharge, but to bail. If the proof is evident, or the presumption great — if the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered, bail is not a matter of right. The Constitution of Pennsylvania does not materially vary in language, and certainly not in significance, from our bill of rights. In Commonwealth v. Kceper of Prison, 2 Ashm. 227, it is declared that it is a safo rule to refuse bail in all cases, where a judge would sustain a capital conviction, if pronounced by a jury, on the evidence exhibited to him. The decision was cited with approbation by the Supreme Court of Ohio, under a constitutional provision identical with ours (State v. Summons, 19 Ohio, 139), and was referred to approvingly by this court in Ex parte Bryant, 34 Ala. 270. Perhaps no more intelligible rule can be laid down for the guidance of the primary courts. When the question is presented to a revisory court, much is due to the judgment of the primary tribunal. The witnesses are personally before it, and the examination is usually had near the scene of the alleged offense, and in the midst of the circumstances attending the transaction. In all investigations of criminal accusations, much depends on the manner in which the witnesses testify, the feeling of partiality or prejudice they may manifest, and their general demeanor. These the primary court has the opportunity of observing, and it should be clear that it has erred in its judgment, or a revisory court should abstain from interference.

The offense imputed is rape, punishable either by death, imprisonment in the penitentiary for life, or by hard labor for the county for life. R. C., § 3661. We have carefully examined the evidence disclosed in the bill of exceptions, and without intending to express an opinion which should affect the final trial, we cannot say we are convinced the probate judge clearly erred in refusing bail.

The application must be denied.

Vol. XXV.- 82

Henback v. State.


(53 Ala. 523.)

"Butcher" – Indictment for carrying on business without liconso.

One who simply buys the carcasses of animals that have been slaughtered by

others for food, and cuts them up and retails them, is not a “butcher," or “engaged in the business of a butcher,” within the meaning of a penal statute prohibiting the carrying on of the business of a butcher without a license.*

MMHE appellant was convicted of carrying on the business of a 1 butcher without a license. The opinion states the facts.

John Elliott and J. Little Smith, for appellant.

John W. Sanford, Attorney-General, contra.

MANNING, J. The charge against defendant is, that “before the finding of this indictment, and after the first Monday in April in the year 1875, Frederick Henback was engaged in, or carried on the business of a butcher, in a stall numbered 37, in the southern market of the city of Mobile, without a license, and con. trary to law, against the peace and dignity of the State of Ala. bama.” A second count charges, in like terms, that he did engage in the business of a butcher,” etc.; and a third count, in like terms, charges that he“ did carry on the business of a butcher," etc.

This indictment was found under section 101 of the revenue act of March 19th, 1875, which enacts, " That any person who, after the first Monday in April, 1875, and after the first Monday in March of each succeeding year, shall be engaged in, or carry on, any business or profession, or do any act, for the doing, prosecuto ing or carrying on of which a license is by law required to be taken out, without having paid for and taken out such license, shall be deemed guilty of a misdemeanor, and shall be fined three times the amount of such license,” etc. [Omitting some minor points.]

* For remarks on this case see 18 Alb. Law Jour., p. 364.

Henback v. State.

The only evidence that appellant carried on the business of a butcher was that he cut up and sold meat by retail at stall 37 in the southern market in Mobile; that he so cut up whole carcasses of sheep and quarters of beef, and retailed them in pieces. Where or by whom the animals had been or were slaughtered was not shown by the evidence. The bill of exceptions sets forth expressly that “no other evidence was introduced tending to show that the defendant was engaged in, or carried on, the butchering business, or business of a butcher." Upon the evidence mentioned, and that the acts complained of were done after the 23d of April, 1875, and before the finding of the indictment, the judge, in his charge to the jury, said: “And the court tells you, that if you believe from the evidence that the defendant * * * * engaged in and carried on the business of cutting up whole sheep, although killed and skinned, and quarters of beef, for sale, and sold the same after being cut up, and that this was his principal business, then he was engaged in the business of a butcher.” For aught that appears in the bill of exceptions, the animals that furnished this meat may have been killed elsewhere, and by other persons, from whom the appellant purchased the meat after they had been killed. It may have been sent down from the country in carcasses and quarters. We all know it is common for this to be done — for meat in this form to be sent from the interior to the produce sellers of our large towns and cities. From this class of merchants defendant may have bought the meat he cut up and sold. If he did, this would not constitute him a butcher, or a person engaged in the business of a butcher. A butcher might, or might not, cut up and sell by retail in the market the bodies of the animals he had slaughtered. It is a common thing, no doubt, for him to do 80; and hence it may seem to be, and indeed would be, a part of the business of a butcher. But we have to disregard the true meaning and origin of the word as explained in dictionaries if we hold that he who buys the bodies of animals that have been slaughtered for meat, and cuts them up and retails them, without more, becomes thereby a butcher, or engaged in the business of a butcher.

The court erred in the instruction it gave above recited, and for this error the judgment must be reversed and the cause remanded.

Judgment reversed.

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