
    
      The Commonwealth v. Semmes.
    June, 1841.
    General Court — Admitting to Bail — Jurisdiction.—A prisoner in close jail upon an indictment for murder, applies to the circuit superior court in term time, to be admitted to bail, and that court refuses to bail him; and then he presents a petition to the general court, praying to be let to bail; Held, the general court has original concurrent jurisdiction with the circuit superior court, and with the judge thereof in vacation, to admit the prisoner to bail for good cause to it shewn.
    Criminal Law — Bail—When Proper to Allow. — It is good cause for admitting to hail a prisoner confined in close jail upon an indictment for murder, that he is labouring under a present painful, severe, and dangerous disease, caused by his imprisonment, and likely to be so aggravated by a continuance thereof as probably to terminate fatally.
    Same — Same—Infant—Recognizance.—An infant prisoner being admitted to bail, his sureties were required to enter into the recognizance of bail, without his joining therein himself.
    Same — Same—When Habeas Corpus, Dispensed with— Case at Bar. — The general court, on the petition of a prisoner in custody on an indictment for murder, to be let to bail on account of the ill state of his health, forbore, on the same account, to bring him before it by habeas corpus, heard his application for bail in his absence, and resolved that he ought to be let to bail; whereupon, the judge of the circuit superior court wherein he was indicted, in vacation, admitted him to bail accordingly.
    Petition to be.let to bail. Semmes was indicted for the murder of professor Davis of the university of Virginia, in the .circuit superior court of Albemarle,, at its May term 1841,. arraigned, and pleaded not guilty. But his counsel moved for a continuance on the ground that such was his ill state of health, that he. was-incapable at .that term of undergoing the protracted trial which was likely to ensue; and the court, upon the testimony of three gentlemen, his attending physicians, as to his actual state of health, upon its own view of. his situation, thought it improper to put him upon his trial, and continued the case till the next term. ■
    .The prisoner’s counsel then, prayed the court to admit him to bail ; representing the apparent- severe and dangerous disease under which he was then labouring; that it was originally caused, and had been continually aggravated, by the condition of the jail in which he was confined ; and that if he should be continued in confinement, it would be yet more and more aggravated, and in all probability prove mortal. Several witnesses were examined touching the alleged grounds of the application. And the court upon consideration of the evidence, refused to let him to bail; directing, however, that he should, be removed from the felon’s room in the jail, where he had hitherto heen confined, into the debtor’s apartment, and that measures should be taken to render this as comfortable as possible.
    And now the prisoner presented a petition to this court, praying to be admitted to bail on the same grounds on which he had made the application to the circuit superior court; adding that his situation had been, since he was remanded to jail, daily growing worse and worse, till now he was reduced to the lowest state of emaciation and debility; and that he verily believed, that, if his present confinement should be continued without intermission, he could not live till the time appointed for his trial, or if he should linger till then, he would certainly be less able to undergo a trial than he was at the last term. And he prayed habeas corpus (if the court should think it necessary) to bring him before it.
    Upon this application,. several witnesses were examined! It appeared that the prisoner was a youth of about nineteen years old. That he was committed to jail for the crime for which he now stood indicted, in November 1840, and there confined in the felon’s apartment; a very small, damp and ill ventilated room, and incapable from its construction of being rendered more comfortable. That about the latter end of March, he had a violent attack of inflammatory or acute rheumatism, attended with extreme pain and high fever, which confined him constantly- to his bed. That the symptoms *of the disease became daily more aggravated until May term ; shortly after which, by the orders of the court, he was removed to the debtor’s apartment, which was in itself much more comfortable than the other, and measures had been taken to render it as comfortable as possible. And that, nevertheless, the disease continued without abatement, until he was attacked with another and, in his very debilitated state, yet more dangerous disease, which seemed at first a bilious fever, but it had assumed a typhus form, and he was now wasted to an extreme degree. But there was some difference of opinion, whether the rheumatism with which he was first attacked in March, was imputable to the state of the room in which he had been confined ? And it appeared, in fact, that he had, some year or more before his imprisonment, been afflicted with a severe disease of the same kind. Whether the removal of him to the debtor’s apartment, after the care that had been taken to render it comfortable, was not of itself sufficient to obviate the danger apprehended from his imprisonment ? Whether his present disease was at all imputable to his confinement there ? Whether it was probable he could recover his health, if he should be continued in confinement during the summer ? Whether it was not necessary to the preservation of his life, that he should be enlarged, and permitted to enjoy free and wholesome air, and the most comfortable lodging, where his friends might have constant access to him, and give him their un-remitted care and attendance ? The result of the evidence, according to the judgment of the court, will be found in the opinion it delivered.
    The question upon the application for bail, was argued by Lyons, Peyton and Leigh for the prisoner, and the attorney general for the commonwealth. The argument turned mainly upon the questions of fact : but there was one question of law, and another involving a point of law, raised by the attorney general.
    *1. The attorney general submitted, that this court had no original jurisdiction to admit a prisoner to bail, whom the circuit superior court had refused to bail, upon his direct application to this court.
    The- counsel for the prisoner, in answer to this objection, referred, first, to the provision of the general court law, 1 Rev. ■ Code, ch. 67, § S, p. 221, that “ the jurisdiction of the said court shall be general over all causes, matters and things at common law, as well criminal as civil, except in such cases as, by the constitution of the U. States or of this commonwealth, or any statute made by the congress of U. States or the general assembly of this commonwealth, are or shall be vested in any other tribunal; in any of which cases the jurisdiction of the general court shall cease, unless concurrent jurisdiction be thereto expressly given by this act or some other statute.” And then they shewed, that concurrent jurisdiction to admit prisoners to bail, was expressly given to the general court by another statute, namely, the statute concerning bail in criminal cases, Id. ch. 167, § 1, whereby it was provided, that “ if the crime be punishable with death or confinement in the jail and penitentiary, and there be good cause to believe the prisoner guilty thereof, he shall not be admitted to bail by any justice of the peace, either in court or out of court; but, for good cause shewn, the general court, or any superior court of law, or any judge of the general court in vacation within his circuit, may admit to bail any person before conviction.” It was clear, then, that the circuit superior court of Albemarle, or the judge of that circuit in vacation, might now, for good cause, admit this prisoner to bail, notwithstanding the refusal of the court to let him to bail at the-late term ; and that this court had concurrent jurisdiction with that court and with the judge thereof in vacation, to admit the prisoner to bail.
    II. The attorney general said, that no doubt was raised here, that there was cause to believe the prisoner guilty *of the murder of which he was indicted : the only ground of the application was the ill state of his health. He cited the words of lord Mansfield in mrs. Rudd’s case, 1 Cowp. 333, that “as to the allegation that the state of the prisoner’s health was such as to be endangered by confinement, it was not of itself a sufficient circumstance, in such a case, to ind'uce the court to let the prisoner to bail.” There, the crime imputed was-forgery; here, murder. And he referred to 1 Gwill. Bac. Abr. Bail in criminal cases ; D. p. 353, and 2 Curwood’s Hawk. P. C. ch. 15, § 80, n. 4, where, it being laid down in the text of both books, that a prisoner charged with felony may be bailed, “where he may be in danger of losing his life by a dangerous distemper &c. if he be not bailed,” the modern editors add, in their notes, this. qualification, that “the indisposition upon which the court will bail, must be a present indisposition arising- from the confinement, and from any constitutional or family distemper, or from the act of the prisoner.” And he argued, that as the prisoner had been subject to the disease of acute rheumatism before his confinement, that, therefore, was a constitutional disease, which might, and probably would, have attacked him again, at the same season of the year, wherever he might have been residing. Then, as to his present disease, this could hardly be ascribed to his confinement in the debtor’s apartment of the jail, not in itself very uncomfortable, and rendered as comfortable as possible through the particular care taken by order of the court to make it so; nor could such a disease be peculiarly liable to aggravation by such confinement. He said, the crime of which the prisoner was accused, was of a very atrocious nature ; and the court ought not to enlarge him upon bail, on doubtful evidence as to his disease, its cause, its nature, and its decree, and the probability of its being aggravated and rendered fatal by a continuance of his imprisonment.
    *The prisoner’s counsel answered, that the reports of mrs. Rudd’s case gave no exact information of the state of her health; what was her disease, how it was produced, whether it endangered her life, whether, in its nature or degree, it was likely to be alarmingly aggravated by her continuance in close confinement. It was in reference to her state of health as it appeared by the affidavits, that lord Mansfield said, “that was not of itself a sufficient circumstance to induce the court to let her to bail.” He could not have meant to say, that no degree of disease, though caused and likely to be grievously aggravated by imprisonment, and threatening to prove fatal if she should be continued in jail, would be of itself a circumstance which would induce the court to bail her: that would have been contrary to all the authorities: it would have contradicted the proposition stated in 2 Hawk. P. C. ch. IS, § 80, even as qualified byCurwood’s note. That a prisoner indicted of murder or treason be in such an ill state of health that longer confinement will bring his life in danger, is good ground for letting him to bail, was admitted in Kirk’s case, 5 Mod. 454, in Harvey of Combe’s case, 10 Mod. 334 ; 3 Vin. Abr. Bail. H. a. pi. 9, p. 534, and in lord Montgomery’s case there referred to. Harvey, being arrested for treason, shortly after the arrest stabbed himself: and the court said, that “this indisposition was not such as to indüce the court to bail him, because it was occasioned by his own act after he was in custody, and he was then much better than he had been, neither was the indisposition such as manifestly endangered his life, as it might be in the case of an acute distemper: the affidavits were only, that his being confined for a few days might make his case the more doubtful, there being then some ill symptoms upon him.” And the court distinguished it from lord Montgomery’s case, whose “sickness was occasioned by his confinement!.” As to the note of Gwillim in 1 Bac. Abr. p. 353, and of *Curwood on 2 Hawk. P., C. ch. 15, § 80, that “ the indisposition upon which the court will bail, must be a present indisposition arising from the confinement, and not from any constitutional or family distemper, or from the act of the prisoner,” the authority referred to by both of those editors, was sir W. Wyndham’s case, 2 Stra. 4. But that case by no means warranted the proposition, that the disease for which the court might properly bail, must not be a constitutional disease; unless the epithet constitutional was intended to be explained by the alternative epithet family distemper. According to Strange’s report of that case, the court said, “ the next thing relied on ” [upon the application for bail] “is the illness of sir W. Wyndham, which appears to be a distemper incident to the family. We are of opinion, that this is not ground enough singly to induce the court to admit him to bail; for it must be a present indisposition arising from the confinement; and so we held this term, in the case of mr. Harvey of Combe, who stabbed himself after his examination, and was refused to be bailed, because his illness was from an act of his own.” The same case would be found reported, very much at large, 3 Vin. Abr. Bail. H. a. pi. 7, p. 515-534, and from that report it appeared, that sir W. W. was committed to the tower in October 1715. and that his disease was an affection of the lungs, which was thus stated by his counsel from the affidavits — “ that' sir W. W. had this inflammation of the lungs from his youth; that his father died of it, about the age he was now of; that in 1710, he was forced to leave his town [London] and go into the country ; that in 1714, the cough returned upon him violently; that his sickness and indisposition were now to be imputed to his want of air and exercise ; and that dr. Horney, the physician of the tower, was of opinion, that if his disorder should increase upon him during- this hot season of the year, it might endanger his life.” There was a prisoner who had an hereditary ^predisposition to pulmonary disease, and a cough which had come on a year before his commitment, so that it certainly was not caused by his imprisonment; and there was no allegation that he was in any present danger, or that his cough had been at all, or would probably be alarmingly aggravated by the confinement, but only that “if the disorder should increase upon him, it might endanger his life.” And, according to the report in Viner, the court said, that “ as to the affidavits concerning the indisposition, they were nonsense, and that the indisposition must be a present indisposition, not in purpose or expectation.” In fact, sir W. W. was, for a long time afterwards, a distinguished member of parliament; he made a memorable speech for the repeal of the septennial act, in 1734. The court of king’s bench, then, did not say, in his case, that it would be improper to bail a prisoner on account of disease, if it was a constitutional distemper, but only that sir W. W.’s disorder was a distemper incident to the family; the plain sense of which was, that it was not caused by his confinement, but might have come on, and the symptoms might have been aggravated, in any situation in which he might have been placed, as well as in the tower. It affirmed no such vague proposition as had been deduced from the opinion it gave, that a prisoner should not be bailed on account of disease however severe or dangerous, if the disease was a constitutional distemper; a phrase that included all diseases but such as are merely local; all diseases which affect the whole system. And even in the case of a prisoner who had an hereditary predisposition to a particular disease, the court clearly clid not mean to say, that if an alarming access of such a disease should be caused by his imprisonment, daily aggravated by it, and likely to terminate in death if the cause which produced and aggravated it should be continued,— this would not be a proper ground for admitting the prisoner to bail. It would, *,nclejd, have been strange, if the court had affirmed such a proposition ; for it would have been nothing less than to affirm, that an hereditary predisposition to disease, which rendered the severity of imprisonment but the more likely to bring it on, and the danger to life the more certain or probable, was a good reason for refusing bail, which, without such aggravation of the danger, might be allowed. The argument of the attorney general rested on the force of the epithet “constitutional distemper,” introduced, without warrant from any authority, by the modern editors of Bacon and Hawkins; and the prisoner’s counsel submitted, that it had no ground of law to support it. But how was it shewn, that the disease of our- prisoner was a constitutional disease? He had had an attack of acute rheumatism some time before his being imprisoned, and, after he had been in jail, confined in a low, narrow, peculiarly damp, and ill ventilated room, he was seized with another disease of the same kind but of peculiar severity, the symptoms of which had been daily more and more aggravated: and it was now argued, that this disease ought rather to be imputed to a constitutional predisposition manifested by his former illness, than to his confinement under circumstances so well calculated to produce it. As reasonably might it be supposed, that if a person, having once had a violent bilious fever, should, some months after his perfect recovery, be exposed to the malaria of lower South Carolina, and be then seized with the country fever, this might fairly be imputed, not to the immediate, apparent and sufficient cause, but to his predisposition to bilious disease. The counsel then went into an examination of the evidence, touching the prisoner’s situation, the cause and nature of his disease, the present danger of a fatal termination, and the necessity of enlarging him upon bail, in order to give him hope of life. And they said though the crime he was accused of, was an atrocious *one, that consideration ought not to enter into the question whether he ought to be let to bail; since the court ought not to presume, because he was accused of the crime, therefore he was guilty of it.
    
      
      Criminal Law — Bail.—in Quarrier’s Case, 5 W. Va. 49, it is said: “Tlté petition, instead of showing probable cause-to believe that the petitioner is detained without lawful authority, shows clearly that he is detained regularly by lawful authority, upon indictments charging him with the commission of divers felonies, and does not allege or show good cause, or any cause, why he should be admitted to bail or discharged from custody. The Commonwealth v. Semmes, 11 Leigh 665; Archer’s Case, 6 Gratt. 705.”
    
   PER CURIAM.

The court is of opinion, that the testimony' in this case shews, that the petitioner has contracted a painful and dangerous‘disease, since his confinement in jail, which disease was the consequence of his having been for a long time confined in a very small, very damp, and very badly ventilated room, and which disease had reduced him so low at the late term of the circuit superior court of Albemarle, as to render it improper, in the opinion of that court, to put him upon his trial; and that since the late term of that court, the petitioner has either contracted a new disease, or the old one has been so aggravated, as to render it certain, that his longer confinement must prove injurious to him, by greatly increasing his disease, and will, in all human probability, cause it to terminate fatally. The court is, therefore, of opinion, that the petitioner shews himself entitled to be bailed, and ought to be admitted to bail upon finding two or more sureties to the amount of 23,000 dollars, — • and being an infant, he is not to be required to enter into a recognizance himself.

BROWN and FRY, J., dissented.

Note.- — The state of the prisoner’s health appearing to be such, that, probably', he could not now be safely removed, the court, therefore, did not order a habeas corpus to bring him before it, but only entered its opinion on record, that he ought to be admitted to bail; and then, Thompson, J., admitted him to bail accordingly, in Albe-marle.  