
    
      The State v. Jackson Holmes.
    
    Bail refused a prisoner, against whom a true bill for murder was found at the term during which he_ surrendered himself, and demanded his trial; and the State allowed to continue the case for want of witnesses.
    
      Before Wardlaw, J. at Barnwell, Fall Term, 1848.
    A homicide was committed 29th May last, and by an in- • quest held the next day, by a Magistrate, acting as coroner, the defendant was charged of murder. By some contrivance, not satisfactorily "explained, the defendant escaped arrest; a bench warrant for his apprehension was obtained by the Solicitor, at Edgefield, and on Tuesday of this term, before the bill had been found against him, which was found that day, he surrendered himself, and upon his arraignment demanded his trial. The solicitor stated that the homicide had been committed at night, when only four or five persons were present, under circumstances which might be found to be very aggravated; but that the transaction had been kept in great mystery, and the defendant not having been in custody, public attention had not been turned to it, as otherwise it would have been ¿ that two of the persons who were present at the ^ homicide, were not now in attendance, and had not been bound over; nor could their attendance be procured at this term, as the solicitor hoped it might be at the next; and that the cause of justice required some time to be allowed for preparation, on the part of the State. The case was accordingly-continued.
    Afterwards, the prisoner, by his counsel, 'made application to the Circuit Judge for bail. He did not ihmk the case a suitable one for bail, and refused the application.
    The prisoner gave notice, that at the next sitting of the Appeal Court in Columbia, a motion would be made to reverse the decision of his Honor, allowing the State to continue the case, which it Was respectfully submitted was erroneous, and the State should have been compelled to try the case, or .the indictment ordered to fee quashed.
    And also, that a motion would fee made, at the same time and place, to reverse the decision of his Honor refusing bail, to which it was respectfully submitted the prisoner was entitled.
    tLRG-ITMENT.
    
      A. P. Aldrich, for the motion,
    cited The State v. Frink, 1 Bay, 168, and The State v.' Hill, 1 Tread. 242. — Said bail in the first case was granted after a conviction for manslaughter — and that it made no difference how one was brought into Court for trial, so he was there.
    
      Edwards, Solicitor, contra,
    said bail was entirely discretionary with the Circuit Judge, and that the Appeal Court would not interfere but in very extraordinary cases. That a homicide had been committed. • That it was an established principle of criminal law, that bail is not admissible in cases of homicide, unless there be a showing of mitigating circumstances, which reduce the offence to something less, or at least to manslaughter,
    Bellinger, also for the motion,
    said, whatever might be the discretion of a Judge of the Sessions, it should, in this case, have been exercised in forcing the State to trial. — -Asked whether the solicitor, when a party is in Court demanding his trial, could refuse to go on 1 Whence this discretion of the solicitor upon his impressions of the case ? Said he did not show by affidavits that his witnesses could not be procured, &c. This Court, proceeded Mr. B., should now grant bail. The term at which the prisoner is first brought up, is the term at which- he is to present his petition for bail, if he is not disposed of; and the second term, he is entitled to his discharge, if not proceeded against.
    
      IN dU ES T.
    Aiken, So. Ca., May 30th, 1848, about 2 o’clock, A. M., James Randall informed me that Edward S. Collins had been stabbed, and was dead at Moseley’s old store. I immediately repaired to the spot, saw deceased dead, ordered Henry Wise to summon a jury of inquest. The following jury were em-pannelled, sworn and charged: J. G. Steedman, Foreman; J. W. Williams, B. F. Legare, R. G. Malone, J. N. Teague, J. L. Weyhe, T. Nelson, John Morris, L. F. Roux, James Gumming, John Turner, John Veno.
    Proclamation being made, for all persons to come forward and give testimony, if any they had, how, when and’ where the deceased came to his death, the following persons gave evidence. When Wm. Williams came forward and gave testimony, sworn, saith, that he saw deceased in five or six steps from the comer of the house where he now lies, with Jackson Holmes, and appeared to be quarrelling with Holmes, but Holmes was quarrelling with deceased, and making a great deal of fuss ; deceased did not say much; did not hear Holmes threaten to kill deceased; did not hear the deceased threaten to kill Holmes either; heard deceased say something about his horse, but Holmes was going on with his loud talking so much, that he did not pay much attention to them. Holmes said to L. Gomillion, that lie thought he was a friend to him, and stick to him till death ; Gomillion said to Holmes, that he was keeping such a fuss in town, that it was enough to annoy the citizens; Gomillion said to Holmes, that if he thought he was imposed upon, that he would stand to his back, and to fight if he wanted to; deceased was standing rvitli them ; (Collins,) deceased, said to Holmes, that he owed him something, and if he did not give him some satisfaction, he Avould whip Holmes. Deceased pulled his coat off; Avitness heard a lick struck, but does not know Avho struck it; says it Avas between 10 and 11 o’clock at night; after he heard the lick, he saw Holmes and Collins, the deceased, like they had hold of each other ; heard deceased say, he has got a knife, he has stabbed me in the breast; Collins, the deceased, Avas giving back from Holmes ; thinks Holmes stabbed deceased ; deceased left Holmes and came in the house; he stopped and opened his bosom, like he Avas looking in it, but did not speak, and staggered back and fell, where he now lies. Witness says Holmes left, on his horse, as soon as deceased said he was stabbed. William Williams.
    Sworn this morning, May 30th, 1848.
    
      James Randall sworn, says, he happened to come up Avhere Holmes and deceased Avas, and Holmes was quarrelling with the deceased; deceased Ávas arguing with him, the said Holmes, something concerning his horse, and said that Holmes was indebted to him, the deceased, something, and that he must settle with him some way, or else he would have Holmes’ horse; Holmes said, before he would give up his horse he would fight, from that time till day, or something to that effect; Collins, deceased, said if fighting was what he was after, he could whip him very easy ; they both pulled off their coats and came together; Holmes and deceased struck at each other, but dont know which struck first, but thinks the deceased made the first advance towards Holmes; when the lick was made, the deceased jumped away from Holmes, and said he had a knife, and said he has stuck it or cut me in the breast, witness does not know which; the witness staid out in the yard until Mr. Williams came out of the house and said deceased was a dead man; witness came in and found deceased lying where he now lies, or very near the spot; says Holmes jumped on his horse immediately after deceased said he was cut or stabbed in the breast; witness says it was about 10 o’clock P.M., perhaps after, ora little before. " James Randall.
    Sworn, 30th May, 1848.
    An Inquisition, indented, taken at Aiken, in Barnwell district, the 30th May, 1848, before Silas Randall, one' the Magistrates, acting coroner for Barnwell district, upon view of the dead body of Edward S. Collins, of Edgefield, and State aforesaid, then and there being dead, by the oaths of J. G. Steedman, James M. Williams, B. F. Legare, R. G.-Malone, J. N. Teague, J. L. Weyhe, T. Nelson, John Morris, L. F. Roux, James Gumming, John Turner, John Yeno, being a lawful jury of inquest, who being charged and sworn, to inquire for the State of South Carolina, when and by what means the said Edward S. Collins came to his death, upon their oaths do say, that the said Edward S. Collins came to his death by the stab of a knife, or some sharp • instrument, received in his breast, about three and a half inches of the left nipple being thereby, and that he received said wound at the hands of Jackson Holmes.
    Witness our hands and seals, this 30th May, 1848.
    Silas Randall, Mag. and Coroner, (l. s.) Thomas Nelson, (l. s.) J. G. Steedman, Foreman,(l.,s.)
    John Morris, (l. s.) L. F. Roux, (l. s.)
    James Cumming, (l. s.) J. M. Williams, (l. s.)
    his B. F. Legare, (l. s.)
    John X Turner, (l. s.) R. G. Malone, (l. s.)
    mark • ’ J. ’N. Teague, ' (l. s.)
    John Yeno, (l. s.) John L. Weyhe. (l. s.)
    
      Affidavit No. 1.
    South Carolina, i
    
      Barnwell District. $ Personally appeared before me, James Randall, who being duly sworn, saith, that after the decease of the said Edward S. Collins, three gold shirt buttons or studs, were found upon his dress when his body was stripped, which this deponent took into his possession, and has ever since had, and now has, and that the other effects of the said Collins were sold to pay his tavern bills. This deponent further states, that a short time since, he informed Lewis Collins, the uncle of the deceased, that he had the shirt buttons, and was told to keep them, until they were called for. This deponent has also told several other persons, that he had the shirt buttons in his possession. No money was found upon the .person or among the effects of the said Edward S. Collins. Deponent heard of no previous quarrel between E. ¡S. Collins and Jackson Holmes, either on the day of Collins’ death, or at any other time. This deponent further says, that if any attempt had been made by Jackson Holmes, to- fob the body of Collins, his opportunities for observation were such, that he must have known it, and he did not observe the smallest intention on the part of said Holmes, to make an attempt at robbery. James Rahdall.
    Sworn to before me, this 25th Oct., 1848.
    M. it. SiTANSEim, Magistrate.
    
      Affidavit No. 2.
    South Carolista, ¿
    
    
      Barnwell Distriet. \ Personally appeared before me, Collins Cochran, who beiug duly sworn says, that he knows the prisoner, Jackson Holmes, and has known him from boyhood ; was raised in his neighborhood; that his character as a good tempered and peaceable and moral young man, is excellent. It is as good as that of any other young man in the neighborhood.
    his
    CoLLINS X CoCHRAK-mark
    Sworn to before me, this 25th October, 1848. •
    M. R. S'TANSEim, Magistrate.
    
      Affidavit No. 3.
    South Caeowíía, 7
    
    
      Barnwell District, $ Personally appeared before me, John Cogbnrn and Derick Holsonbake, after being duly sworn say, they know the prisoner, Jackson Holmes, and have known him from boyhood; was raised in their neighborhood, and lived there ever since; that his character as a good tempered and peaceable and moral young man, is excellent. It is as good as that of any other young man in the neighborhood. Deponents further swear, that Lovet Gomil-
    
      1 Tread-
    lion, who is said to have been present when Collins was killed, has fled from the State, since Collins was killed.
    J. Cogburn,
    Derick Holsonbake. Sworn to before me, this 25th October, 1848.
    M. R. Stansell, Magistrate.
   Withers, J.

delivered the opinion of the Court.

It does not appear that the prisoner was brought up for bail under the habeas corpus Act; but the provisions found in the 7th sec. of that Act have nevertheless been appealed to as affording a rule according to which he should have been discharged on bail.

It is too late now to say, since the case of the State v. Hill, that a Judge of the Court of Sessions may not admit to bail even one against whom a true bill has been found for a capital felony. No doubt the power should be exercised with the utmost caution, and it is very probable that it has been much more freely exercised in modern times than by those Judges who lived nearer the time when the habeas corpus was passed.

The 7th sec. of that Act is as follows: “ That if any person who shall be committed for treason or felony, plainly and specifically expressed in the warrant of commitment, upon his prayer or petition in open Court, the first week of the term, or the first day of the sessions of Oyer and Terminer or general gaol delivery, to be brought to his trial, shall not be indicted some time in the next term, sessions of Oyer and Terminer or general gaol delivery, after such commitment, the Justices of the said Court shall, upon motion in open Court, the last day of the term or sessions, set at liberty the prisoner upon bail, unless it appear upon oath that the witnesses for the king could not be produced the same term, &e. — and if such prisoner upon his prayer, &c. shall not be indicted and tried the second term or sessions he shall be discharged from his imprisonment.”

A very prominent object of the habeas corpus Act was to rescue from imprisonment those who had not been lawfully committed to prison, by a short and effectual process in favor of that great constitutional right of an English subject to personal liberty which had long before the Act of Charles the second been recognised and sanctioned in Magna Charta. But the clauses of that Act preceding the 7th denied the writ of habeas corpus to those who were committed on warrant plainly and specifically expressing treason or felony: In such cases the Judges were not empowered to inquire into the truth of the facts contained in such warrant. A further security,, therefore, is to be found in the 7th section, above quoted, against the protracted detention of an innocent man, though committed upon warrant wherein treason or felony be ever so plainly expressed.

1 Brev. 460. 3 Brev. 415.

1 Tred. 242. Dud. 295.

The grand, scope of the Act, therefore, was — 1st. To prevent an illegal imprisonment; and 2d. To restrain a protracted detention, though the commitment were legal m the outset.

It is under the last of these objects that the prisoner here supposes he can range his case.

Supposing the :tnext term” “after the commitment,” to mean in this case the current term during which it appears the prisoner surrendered himself (which is the most liberal construction of the words in his behalf) yet he could not be entitled to bail as matter of right, for either of two circumstances will deprive him of that, in other words, make the said 7th section of the Act inoperative, to wit, first, that he be indicted ; second, if not indicted, yet that it appear, on affidavit, that the witnesses for the State could not be produced at that term. Now whatever may be said in relation to the second obstacle mentioned, the first undeniably did exist. .

The last clause of the 7th sec. of the habeas corpus Act provides for the right of a prisoner to be discharged at the second term after his commitment, provided he be not both indicted and tried. It appears very obvious that this contingency has not yet occurred; the second term has not yet arrived — that has been done which was required fo be done at the first term, on condition of enlarging on bail if it were not; and it would seem obvious also that such was the view of the prisoner upon the proceedings below; for, according to the report, he did not move for his discharge, but only for bail, after pressing for trial and failing in that. If bail had been granted, and we should suppose the prisoner to move for his discharge at the next term, because on his demand the State refuses to proceed to trial, it would seem that in such case he could not be discharged, if we regard the case of the State v. Buyck, reaffirmed by that of the State v. John & Wm. Logan. In those cases the doctrine was affirmed (and it is unquestionably true) that the clause in question does not_apply to those who are not in actual confinement. Regarding these two cases as settling conclusively the point embraced by them, the section under review seems to contemplate the following result, to wit, a prisoner who applies at the first term of the Court of Sessions succeeding his commitment for his trial, and a bill of indictment is preferred against him, by the grand jury, is no longer entitled to invoke anything in the habeas corpus Act, but for any purpose of enlargement on bail he must resort to the general jurisdiction of the Judges of the Courts of Law derived from the Common Law, and well discussed in the case of the State v. Hill, and the State v. Everett & Potter. If, however, he be not indicted and yet refused bail (because for example the State cannot • procure the witnésses at that term) or being indicted is still refused bail upon an application to the general jurisdiction of the Court, in both which cases the prisoner remains in confinement, he will at the next succeeding, that is, at the second term of the Court after his commitment, be entitled to his discharge, if he be not both indicted and tried.

5 Mod. 328, 1696.

6. in time of James n-

Andrews, 64, 1'737-

Modem, 66.

No case has been found in the English practice upon the subject of bail in criminal cases which favors the motion made here. Let us resort to a few examples as an illustration of the course pursued by English Judges in earlier times.

Mrs. Barney's case. — Bill of indictment at the Quarter Sessions for petty treason and murder of her husband. She came in custody and moved for bail. The case was said not to be' within the common rule; but it appearing by affidavit that the prosecution was malicious, and there being nothing done, either upon the indictment or coroner’s inquest, or at the assizes, and the man being dead above a year, she was bailed— (not discharged, nor the indictment quashed.)

King v. Delamere, — the motion was for bail for want prosecution. It was said that the Grand Sessions held at Chester would be regarded as a term, and if the prayer had been there the party might have been bailed; but being made elsewhere (it was Mich, term) he could have no advantage from the prayer there made, though on the first day of the term. It was further determined that though the word in the Act was witnesses,” yet the absence of one witness was enough — and that the oath required might be viva voce. The party was bailed — but only on consent of the Attorney General.

The King v. Bell and wife. Felony in stealing goods belonging to the Guardians of the Poor of Canterbury. Two sessions had passed since commitment without trial, though the parties themselves had endeavored to bring it on. They were ordered to bail (not discharged,) Lee, C. J. observing — ■ the principal reason of admitting them to bail was that they might have been tried before, there having been an assize since their commitment; and he said he remembered a similar case, where, on account of delay, the defendant was bailed.

Crosby's case shews conclusively the construction given 1694 in England to the clause under consideration of the habeas corpus Act. Crosby was brought to the bar by habeas corpus, upon a prayer to be discharged or bailedT having entered his prayer the first day of Trinity term last, (this application was in Mich.) and he was indicted for treason at the last term. At the term present he was indicted for the same species of treason, but had never been tried on either of them. It was alleged by Crosby’s counsel that the object of the statute was that no person should be above two terms under the same accusation — and of that opinion was Holt, who said that the prayer relates to the commitment, so that the party ought to be tried for the treason for which he is committed within two terms ; and the design'of the Act was to prevent a man's lying under an accusation for treason, &c. above two terms.”

Certainly the habeas corpus Act did not enlarge the liberty of the siibjeet, nor introduce'any new principle; neither arfe its remedial provisions by any means co-extensive with the powers exercised by the King’s Be nch in favor of vindicating the liberty of individuals improperly confined, and this by authority of the common law. But it solved all doubts as to the right of the Judges of the Court of Common Pleas to issue the writ; — -and as to the right of the Judges of the Law Courts to issue the same in vacation. Its provisions are admirable also in enforcing obedience to the writ, promptly and faithfully. But however venerable the statute has become by its intrinsic merits and its incorporation into our fundamental laws in America, it ought not to be imagined that any new immunity has been derived from that quarter; or that it should' operate a general gaol delivery on principles unknown to the common law.

This Court is satisfied that there was nothing in this celebrated Act Which entitled the prisoner in the present case to his discharge ; nor any thing in the cause shewn, considered independent of the Act, which entitled him to bail.

Nevertheless we do not design to foreclose the prisoner from applying again for bail, provided he has any additional cause to exhibit. To this purpose a Judge at Chambers is quite adequate; and perceiving nothing of error in the ruling of the Judge on Circuit, the motion in this case is dismissed.

The whole Court concurred.

Motion refused.  