
    
      TERRITORY vs. M‘FARLAME.
    
    Spring 1811.
    First District.
    Bail denied on indictment for murder.
    The defendant, being charged with murder, was brought before one of the judges of this court at his chambers, who thinking the presumption of his guilt but slight, was willing to bail him. It being late in the night, the defendant found it impossible to procure bail and was committed. At the opening of the court on the next day, the grand jury brought in a bill of indictment, charging the defendant with murder. He prayed to be admited to bail. His motion was opposed by the attorney general, who relied on the case of the Territory vs. Benoit, ante, p. 142.
    
      Ellery, in support of the motion.
    This court, being the superior court of the territory, and having common law jurisdiction, has necessarily the same power as the Court of King’s Bench in England.
    The Court of King’s Bench may, virtute offi
      
      cii bail any person brought before them, of what nature soever the crime is, even for treason or Murder. 2. Hale's P. C. 148. And this bailment may be upon original indictment before them in the county where they sit, or upon indictment removed by certiorari, or upon a prisoner removed by Habeas Corpus, before or after indictment taken, id. 129.
   By the Court.

When the grand jury find a bill for a capital offence, the party charged lies, from the finding alone, under such a violent suspicion of guilt, that the court will instantly commit him, if he be present, or direct a capias against him ; and as the trial, in the ordinary course, is not long delayed, it is the practice of the court not to lend its ear to a motion for bail.

This is the general rule. We will not say that it may not have its exceptions. As, if the party, charged to have' been murdered, were to make his appearance in court.

In case of a mistrial or of a continuance, at the instance of the territory, as the confinement may be extended to a considerable length, there would be no impropriety in listening to a motion to bail ; but when the attorney-general is ready for trial, the court, except in a very extraordinary case, will not admit the application.

But in all these cases the bailing, is in the discretion of the court, and none can challenge it de jure. Hale's P. C. loco citato.

By the ordinance of Congress which is the ^ constitution of this territory, bail is to be taken, uniless for capital offences where the proof shall be evident or the presumption great. Art. 2.

In the present case there are circumstances which seem to preclude the defendant from the indulgence he requests. It appears one McBride was beaten with a stick by one Byrns, of which beating he afterwards died, and that the defendants tood by, encouraging Byrns to beat the deceased well.—That Byrns and the defendant were gamblers, and the deceased had given such information to a magistrate, upon which they had been arrested. It did not appear whether Byrns’ anger proceeded from any outrageous behaviour of the deceased on an encounter, or from an irritation excited in him and the defendant, by the prosecution which the deceased had provoked. Now the grand jury have brought bills against Byrns and the defendant, charging them with murder.

The defendant has clearly, and from his own admission, participated at least, in an aggravated battery, from which death has ensued. If his offence is reduced by the petit jury to manslaughter or battery, the court will, in fixing the time of his imprisonment, give, him the benefit of any extenuating circumstances which may appear at the trial.

The rule laid down, in Benoit’s case, is, it is believed, a correct one. It will not, however, be rigidly extended, to cases in which the defendant has not the benefit of a trial, during the term, in which the indictment is found, when the continuance is not granted, at his solicitation.

Motion Overruled.  