
    Newton Kendle v. David Tarbell, Judge of the Court of Common Pleas of Brown County.
    1. Section 48 of the criminal code, which provides for the holding of an examining court at the instance of a person committed to jail charged with the commission of any crime or offense, does not apply to persons-committed on indictment.
    2. During the term at which an indictment charging a capital offense wa? set for trial, application was made by the accused for the court to hear testimony to show that the offense was in fact bailable. Held, that the application was properly refused.
    Mandamus.
    The relator, Newton Kendle, filed two motions in this? court for writs of mandamus against the defendant.
    
      The first motion is based on the following facts : At the “October term, 1873, of the Court of Common Pleas of Brown county, the grand jury returned an indictment against the relator for murder in the first degree. Upon this indictment he was arrested and committed to the jail of the county. Wishing to be discharged from imprisonment, the sheriff’, at his instance, gave more than three days’ notice in writing to the defendant, and to the clerk of said court .and the prosecuting attorney of the county, of the time and place of holding an examining court by the defendant, for the purpose of examining witnesses and admitting the relator to bail. At the time and place fixed for such hearing, the parties all being present, the defendant refused to hold an examining court or in any manner to take cognizance of the case, on the ground that after indictment found, he had no power to hold such court for the purpose of hearing .and determining the relator’s right to be admitted to bail.
    The relator seeks by mandamus to compel the defendant to hold such court and hear his application.
    The ground of the second motion is the refusal of the defendant, while engaged in holding a term of the Court ■of Common Pleas, to hear evidence for the purpose of admitting the relator to bail.
    On the 29th of October, 1873, the relator, before pleading to the indictment, moved the court to be admitted to bail. ‘This motion was overruled.
    On the 4th of November, 1873, the defendant was arraigned and pleaded not guilty, and, under the direction of the court, the 17th of November, being at the same term, was designated for the trial. Thereupon the relator renewed his motion, and moved the court to hear testimony of witnesses thereon. This motion the court also refused.
    The object of the second motion is to obtain a writ of mandamus, compelling the court to hear the testimony «offered on behalf of the relator in support of such motion.
    
      White § Waters, and Loudon £ Young, for relator:
    Under section 48, criminal code, persons confined in jail upon'any criminal accusation, no matter how nor by what authority they may have been committed, may be admitted to bail, or be entirely discharged from the accusation.
    Section 51, criminal code, directs how persons confined-in jail charged with bailable offenses may be admitted to bail. Section 48 provides for the care of persons committed to jail, under an indictment or not, charged with the commission of any crime or offense.
    Section 53 of the criminal code authorizes the judge of Common Pleas in any county to hold the examination provided for in section 48.
    The constitution of Ohio, article 1, section 9, provides that “ all persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great.”'
    An indictment raises no presumption of guilt. Every person is presumed to be innocent until proved to be guilty. Therefore, under the said section of the constitution, every person accused of an'offense of whatever kind, is bailable until the “ proof is evident or the presumption great” of his guilt, which may be determined by an examination under section 48 of the criminal code.
    The right of bail exists by the constitution, and does not. depend upon statutes. The judge is bound by his oath of office to observe the provisions of the constitution, and to' secure to the citizen every right he is entitled to enjoy by virtue of its provisions. Commonwealth v. The Keeper of Prison, 2 Ashmead, 227; Summons v. The State, 3 Port. (Ind.) 293; Wray, ex parte, 30 Miss. 673; 2 Bennett & Heard Leading Crim. Cases, 580-587.
    
      W. J. Thompson and John G. Marshall, for the defendant :
    There is no authority of law for such a proceeding as-asked for by plaintiff, because after indictment found for an offense not bailable, on its face, the question of bail can< not be determined by an examining court. It can only be by the court having jurisdiction of the offense; and this-only in the course of a legal investigation, on the trial of an indictment, as when the jury fail to agree or a new trial is awarded. Summons v. The State, 19 Ohio, 139; Ohio L. 1869, p. 259, sec. 51.
    Any other course would lead to interminable confusion, and might lead to disastrous consequences to the accused.
   White, J.

The question raised by the first motion is, whether section 48 of the criminal code, which provides for the holding of an examining court at the instance of a person committed to jail charged with the commission of any crime or offense, applies to persons committed on indictment.

The section is as follows: “ When any person shall have been committed to jail charged with the commission of any crime or offense, and wishes to be discharged from such imprisonment, the sheriff or jailor shall forthwith give to the probate judge, clerk, and prosecuting attorney of the proper county at least three days’ notice of. the time of holding an examining court, whose duty it shall be to attend, according to such notice, at the court-house; and said judge having examined the witnesses (the person charged included, if such person shall request an examination), shall discharge the accused, if he finds there is no probable cause for holding him to answer ; otherwise he shall admit him to bail or remand to jail. . . .”

By section 53, the judge of the court of' criminal jurisdiction of each county is invested with concurrent jurisdiction with the probate judge in all matters referred to in the above and certain other sections.

Notwithstanding the comprehensive language used in the section quoted, it must be construed and limited with reference to the subject-matter and the other sections of the act. Thus construed, it seems clear to us the section was not intended to apply to persons committed upon indictment.

Articles 1 and 2 of the same title of the code treat of the subject'of arrest, and of the examination by the committing magistrate. Article 3, in which the section in question is found, treats in the preceding sections of the duty of the committing magistrate in case bail is required, and is either given or refused. And section 48 is intended to apply only to persons committed on criminal charges, as provided in the preceding sections of the act.

The power of the judge holding an examining court, to discharge, extends to all cases he is authorized to examine ; and it is wholly inadmissible to suppose that it was intended to authorize him to discharge persons arraigned on indictments in the Court of Common Pleas, and who are held in custody for trial in that court.

The refusal of the court to hear testimony on the motion to admit to bail, furnishes no ground for the interference of this court by mandamus.

We are not called upon by the facts of this case to enter into an examination of the circumstances under which it would be competent or proper, if at all, for the court, in which an indictment is pending for a capital offense, to hear testimony, otherwise than on the trial, for the purpose of showing that the offense was in fact bailable.

According to the English practice, such evidence is not allowable. 1 Chitty C. L. 130; Regina v. Chapman, 8 Car. & Payne, 259; Regina v. Guttridge et al., 9 Ib. 228.

The same practice prevails in the courts of the United States. The United States v. Ruse, 3 Wash. O. C. 224; 1 Burr’s Tr. by Rob. 18, 19, 20, 106, 306, 308.

The practice in the state courts is not uniform. See note in 3 Hill, where many of the authorities are collected; also, Hurd on Habeas Corpus, 438; The People v. Van Horn, 8 Barb. 158.

In Indiana, the right is regulated by statute. Lumm v. The State, 3 Porter, 293.

In this state, we have no statute on the subject.

The constitution declares that, “All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great.”

The indictment raises the presumption required by the constitution to justify the refusal of bail. In The State v. Summons, 19 Ohio, 139, it was held that evidence given on .the trial of the indictment, might be properly considered for the purpose of rebutting the presumption. Such evidence could only be obtained where the jury had failed to agree or a new trial had been granted. But whether the court ought otherwise to go into general evidence for the purpose of rebutting the presumption and of admitting to bail, and if so, under what circumstances, the court was not called on in that case to decide.

In the case of the Commonwealth v. Keeper of Prison, 2 Ashmead, 227, cited in Summons’ case, there had been no indictment found.

The case before us was not one to justify the exercise of .■any such authority. Certainly the motion ought uot to be entertained .before plea. When renewed after plea, the ease had been set for trial at that term, and for aught that .appeared would be tried at the time designated. There were no special circumstances relied on as grounds upon which the court was asked to entertain the motion. It .seems to have been regarded as the right of the party to have the testimony heard. W e think otherwise, and that the court properly refused the application.

Motion overruled.

Day, C. J., McIlvaine, Welch, and Stone, JJ., concurring.  