
    NEW-YORK OYER AND TERMINER.
    The People agt. Lewis Baker and others.
    On a motion to admit to bail on an indictment for murder, upon testimony taken before the coroner and the grand jury, further proof, by affidavit or oral testimony, on the part of the defendants, tending to show their innocence of the offence charged, as affecting the question of bail, cannot be allowed.
    Previous to the Revised Statutes, it was well settled that in capital offences the defendant might be bailed before indictm'ent, but not afterwards: the reasons for the distinction were, that before the indictment the court had access to the depositions and testimony on which the charge was based; and in the other case could not, because the grand jury were required to keep the testimony before it secret; and the court, having no means of inferring otherwise, would, therefore, always imply that the grand jury had not indicted on insufficient proof, and so refuse bail.
    But it is provided by the Revised Statutes, (2 if. S. 724, § 30,) that “ every grand jury may appoint one of their number to be a clerk thereof,- to preserve minutes of their proceedings, and of the evidence given before them,” &c. So that the court may now be possessed of all the evidence taken before the coroner and grand jury. The question of bail in capital cases, therefore, is now open to consideration to the same extent after as before indictment.
    It seems to be settled by authority, that the court will in all cases, capital or otherwise, exercise its discretionary powers, and admit to bail when, from the testimony under which the accused is held, it is indifferent whether he is innocent or guilty,—in other words, when, upon an examination of the testim my, the presumption of guilt is not strong; and it is particularly called upon to bail in all cases when the presumptions are decidedly in favor of the innocence of the accused.
    The testimony given before a grand jury, which is always ex parte, should be sufficient in degree to convict, or show the defendant guilty, if unexplained; upon less testimony than this the grand jury should never find a bill.
    In this ease, held, that, as the proof stood, it would not justify the conviction of the defendants, Hyler, Lynn, or Van Pelt. They should be admitted to bail.
    And as regarded the defendants, Irving and Morrissey, held, that, upon the testimony, there was not only none upon which a conviction could be had, but that' the proof of it did not warrant the finding of the indictment. They should be admitted to bail.
    
      April Term, 1855.
    Indictment for murder. Motion to admit to bail.
    
      James W. Nye & Horrace F. Clark,for defendants.
    Mr. Russell, for defendant Van Pelt.
    
    A. Oakley Hall, district attorney, for People.
    
   By the court—Cowles, Justice.

This is an application to admit to bail all of the defendants, except Baker, who is still at large. The motion is based upon the testimony taken be ■ fore the coroner, and that taken before the grand jury, on which the indictment.was found. The defendants at the same time ask leave to furnish further proof, by affidavit or oral testimony, on the subject, showing their innocence of the offence charged, as affecting the question of bail. The district attorney at the same time .also moves.for an increase of the bail heretofore taken-from the defendant Irving.

The first question to be settled is, whether such further proof can be received 1 After,a careful examination of. the subject, I have come to the.conclusion that such proof cannot be received. It has not been the practice .heretofore; either in this country or in England—nor can such a precedent be established, with-' out making an application for bail substantially a trial on the meritsfor if the prisoner can produce, such evidence in his own behalf, the public.prosecutor should be permitted to controvert it; which, in effect, would transform a -motion to bail into an examination into the guilt or innocence of the prisoner.

The rule seems to be. well settled to the contrary, and with reason, because, to open the whole question of guilt or innocence to proof on a motion to admit-to bail,.would be attended with most serious public inconvenience. ' In most cases there would be extant on the files of the court the preliminary, examination of the accused, or the testimony before the coroner, or that before the grand jury—in some cases, all. True, as in this case, a party may sometimes, by casualty, be deprived of the benefit of a preliminary examination, but the hardship in a particular instance should not induce the establishment of a precedent, which would prove, of great.public inconvenience. The motion to put in proof must, therefore, be denied.

This brings us to the main question. The power of the court to "bail is unquestioned; but the principles which will guide the court in the exercise of this power have been well established, and will be recognized here as the true rule by which to be governed.

It has been said that in the higher class of ollences, particularly of a capital nature, a-court will not bail after indictment, although they may before. This distinction has. arisen from the fact, that in the one case the court have before it the testimony taken before the coroner’s jury, or before the committing magistrate, and can thus, by an .inspection of the testimony, be enabled to form some judgment as to- probable guilt or innocence ; .while in the other case the old rule did not permit the testimony before the grand jury to be disclosed, and the court were therefore, after indictment, unable to say on what proof it had been found.

In. Lord Mohan’s case, (1 Salk. 104,) it was said, “If a man be found guilty of murder by a coroner’s inquest, we sometimes bail him, because the coroner proceeds upon depositions taken in writing, which we may look into; otherwise, if a man be found guilty-of murder-by a grand jury, because the court cannot take notice of their evidence, which they by their oath are bound to conceal.” “ A man charged with murder by the verdict of a:coroner’s inquest may be admitted to bail, though not after the finding-of an indictment by a grand jury.?’ (1 Chitty Crim. Law, 129, Am. ed. of 1836.) And the reason is the same as above given.

So in 1 Martin’s Lous. Rep. 142, The Territory agt. Benoit, the court say, “ On a coroner’s inquest finding a person guilty of a capital crime, the judges have often, looked into the testimony, which the coroner is bound to record; and, when they have been of opinion that the jurors had drawn an illogical conclusion,-admitted the party-to bail. But as the evidence before the grand jury is not written, and cannot-be disclosed, the same discretion and control cannot be exercised, and the judges cannot help considering the finding of a grand jury too great a presumption of the defendant’s guilt to bail him.”

Other instances, to the same effect, might be cited, all showing that the distinction made between bailing in capital cases before or after indictment has been founded, on the reasons above given—that before the indictment the court have access to the depositions and testimony on which the charge is based, and in the other case could not, because the grand jury were required to keep the testimony before it secret; and the court, having no means of inferring otherwise, would, therefore, always imply that the grand jury had not indicted on insufficient proof, and so refuse to bail. Such difficulty, however, does not exist in this case.

It is provided by 2 R. S. 724, § 30, that, “ Every grand jury may appoint one of their number to be a clerk thereof, to preserve minutes of their proceedings, and of the evidence given before them,” &c., which was done here; and the whole evidence taken before the grand jury who found this bill, it is admitted, is before the court, consisting of the record of the testimony taken before the coroner’s jury, which was also read before the grand jury, together with a full record of all other facts testified to before the grand jury. The question of bail is, therefore, open to consideration to the same extent as it would be if applied for before indictment, for the court know on what testimony this indictment was found.

The question then arises, under what circumstances can bail be given in cases like the present 1 In the case of The People agt. Goodwin, (1 Wheeler’s Crim. Cases, 445,) the late Chief Justice Spencer says, “ That if it- stands indifferent whether a person charged with a felony be guilty or not, he ought to be bailed; and that, even in capital cases, where there are any circum- ■ stances to induce the court to suppose he may be innocent, they will bail.”

That most eminent of jurists, in the same case, after stating further that there is no fixed or certain rule for every case, but that each one must be governed by the peculiar circutastances attending it, says, The object of imprisonment before conviction, is to secure the forthcoming of the person charged with the commission of a crime, and it is never intended as any part of the punishment; for until the guilt of the party be legally ascertained, there is no ground for punishment; and it would be cruel and unjust to inflict it. The laws,” says he, “ of every free country estimate personal liberty as of the most sacred character; and it is not to be violated or abridged before trial. If,” he further says, “ the punishment, be death, or corporeal imprisonment, a consciousness of guilt would probably induce flight and an evasion of the punishment; and in admitting to bail, therefore, regard must be had to the probable guilt of the party, and the nature of the punishment.”

He then proceeds to recapitulate the facts in that particular case, which was for manslaughter—stated the prisoner had once been tried and the jury disagreed; that the foreman had, when called, rendered a verdict of guilty; but then, on being polled, one of the jury dissented; and then proceeds, “ I am, therefore, bound to presume that the prisoner may be innocent of the offence. In such a case, as I understand the law, he is entitled to be bailed.”

These principles were approved by the court in the case of Tayloe, (5 Cow. 39,) which was a case of homicide, before indictment; and in that case, after approving of the rule laid down by Chief Justice Spencer, in the case above cited, Mr. Chief Justice Savage says, “ If the facts in the case now before the court afford the same presumptions of innocence, and it ap pears to the court, from the depositions, that it is quite indifferent whether he is guilty, then, in my opinion, he ought to be bailed, otherwise not.”

The same rule has been repeatedly recognized in England. (Hawkins Pleas of the Crown, B. 2, ch. 15, §§ 40 to 50; Rex agt. Dalton, 2 Str. 911.) In Com. Digest, Bail F, it is said, The court will not bail in murder, treason, &c., unless there be reasonable cause.”

The criminal code of Louisiana contains a provision, which seems to be a summary of the common law rule on this subject. Article 192 provides that, “ All persons shall be bailable, except for capital offences, where the proof is evident and presumption great;” and then, reciting that murder, rape, and some other offences, are punishable with, death, proceeds—. “Persons accused of the offences above enumerated, (capital offences,) are also to be bailed when the proof 'is. not evident, nor the presumption strong.”

The general proposition, deducible from, the foregoing authorities, is, that the court will in all eases, capital or otherwise, exercise its discretionary powers, and admit to bail when, from the testimony under which the accused is held, it is indifferent whether he is innocent or guilty-'—in other words when, upon an examination of the testimony, the presumption of guilt is not strong; and' they are particularly called upon to bail in all cases when the-presumptions are decidedly in, favor of the innocence of the accused-. ....

It may'be-well here, also, to inquire on what testimony an indictment should be based? I am -satisfied that this most important matter^ is -oftentimes overlooked, and still oftener, perhaps, misunderstood, by our grand j uries ; and yet such is the very nature of the organization of a grand jury, such its mode of proceeding, the secrecy of its action, and the ex parte character of= the testimony-taken before it, that' these errors are rarely, and then only incidentally, brought before the court for review. - These errors the court should vigilantly watch, and, as far-as practicable, correct.

In no case is injustice-more likely to be done than in the finding of indictments on insufficient proof—an injustice difficult to .be guarded against, and yet oftentimes most oppressive in its consequences to the accused. I cannot regard the indictment as' in theory a mere accusation, based upon probable cause to believe "the accused may be guilty—like the finding of the committing"magistrate—but-as a direct and-positive charge' on oath-that upon the testimony before the. grand jury, ex parte and unexplained, the jury find he is guilty.

In 1 Chitty-Crim. Law, 318,. it is said,- “ Formerly it was laid down, that a grand jury, ought to find, the bill if probable evidence were adduced to support it, because it is only an accusation, and the defendant will afterwards- defend himself before a more public tribunal. But great authorities have taken a more merciful view of the subject; and, considering the ignominy, the dangers of perjury, the anxiety of delay, and the misery of a prison, have argued that the grand inquest ought, as far as the evidence before them goes, to be convinced of the guilt of the defendant. What was, therefore, anciently said of petit treason, maybe applied to all other offences—that since it is preferred in the absence of the prisoner, it ought to be supported by substantial testimonies.”

“ Indictments,” says Lord Coke, “ being the foundation of all capital proceedings, found in the absence of the party accused, and only the evidence for the king being adduced, it is necessary that the proof of the offence should be substantial.” (3 Coke Inst. 25.)

In a note to 4 Hawkins’ Pleas of the Crown, p. 82, we find the following: “ It has been observed, with great strength of argument, that a grand jury ought to have the same persuasion of the truth as a petit jury, or a coroner’s inquest.” (Vide also 4 State Trials, 183.) Blackstone uses the following language : “ A grand jury ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes, and not to rest satisfied merely with remote possibilities—a doctrine that might be applied to very oppressive purposes. (4 Bl. Com. 303.) The rule, as thus laid down, I believe to be the true one. No other, in my judgment, is safe; nor is it to be tolerated that a citizen shall be charged with a serious offence, and sent to a petit jury for trial, unless the ex parte testimony, taken in his absence, with no power of cross-examination, shall at least, if unexplained, show him guilty. This is implied in the very language of the indictment:—“ The jurors, &c., upon their oaths, present that A B is guilty,” &c. How, upon their oaths, can they say the accused is guilty, unless, as the testimony stands before them, the proof, unexplained, would lead logically to such conclusion? Is it to be tolerated that grand juries are to speculate upon the chances of the guilt or innocence of the citizen? If the grand jury cannot say that the testimony they have taken ex parte is strong enough to lead to conclusion of guilt, is the citizen to be subjected to all the ignominy of an indictment, and the rigors perhaps of a long confinement in a prison, to the injury of his health and character, and the ruin of his business, on a suspicion merely that he may be guilty % I do not so understand the law, but as above stated—that the testimony must be sufficient in degree to convict, if unexplained. Such are the principles which must govern in the cases now before the court.

The parties who apply for bail, seven in number, namely, McLaughlin, alias Pargene, Turner, Hyler, Lynn, Van Pelt, Morrissey, and Irving, are all charged by the indictment as accessories to the murder of William Poole. The testimony shows, that on the evening of the homicide, without anticipation of a meeting by either party, Morrissey and the deceased met in a public house in this city; that they were enemies; that on meeting, a violent quarrel ensued between them, and much feeling was excited; that Poole, supposing probably he would be assaulted, drew a pistol, and pointed it at Morrissey3 that Morrissey was soon furnished with one, which he snapped at Poole; that at this time Irving interfered and attempted to prevent any difficulty; and that after much excitement, but no blows given, the parties were separated by the arrest of Poole and Morrissey, both of whom were taken away in opposite directions. None of the accused were present at this first quarrel but Morrissey, Irving, and Hyler. As the parties were taken from the house, Irving also left, and was not seen in company with any of the accused again that night, and the weight of the testimony is, that he went directly home, and did not hear of the subsequent affray until the next morning. The only other testimony as to Irving is, that some months before this he had been heard to make threats in regard to Poole, and to declare his intention to procure his death. As to Morrissey, the whole testimony goes to show that, after the difficulty, he, in company with some of the accused and others, called at different drinking places; that he became very much intoxicated, and was taken home, before the second affray, in a state of senseless inebriation. There is no evidence that he conspired with any other parties to have a further collision with Poole that night, or expected one; and the inference from the testimony is conclusive, that he knew nothing of the subsequent difficulty which resulted in Poole’s being shot, until after the occurrence, and was then in too inebriated a state to be made to know it until the next morning.

As to Hyler, Lynn, and Van Pelt, the theory of the prosecution is, that they, in conjunction with Baker, Pargene, and Turner, formed a conspiracy for the purpose of a joint attack, the same night, upon Poole, and together went to the scene of the first difficulty with that end in view. That these parties last mentioned did go to the scene of the homicide, and probably in company, is true. That a difficulty soon ensued between a portion of the party and Póole, is equally true; and Poole received a shot which resulted in his death some days after. To connect Hyler, Lynn, or Van Pelt with this shooting, so as to make either one liable as an accessory, it is necessary for the prosecution to first establish a guilty confederacy among them, having that end in view; for, so far as the proof shows, no overt act, on the part of these three parties, was committed after they entered Stanwix Hall which indicated any participation in the attack on Poole. Van Pelt, on that occasion, as the evidence shows, interfered with Pargene, one of the accused, to prevent his assault on Poole, and was knocked down for his attempt, and immediately left the house. Neither Lynn nor Hyler joined in the attack that was made, nor in any way showed a hostile purpose by any overt act.

•The strongest view that can be taken of the case unfavorably to the defendants, Hyler, Lynn, and Van Pelt, is, that there are strong suspicions that they may have known Poole was at Stanwix Hall, and went there with the others to attack him, or at least to witness such an attack. There are some circumstances which favor such a theory; but, so far as the circumstances in proof now go, they are not sufficient of themselves, without other proof, to warrant a finding that it was so. The case as to them, therefore, falls within the rule laid down in The People agt. Goodvdn, (1 Wheeler’s Crim. Cases, above cited.) As was said by Mr. Chief Justice Spencer in that case, so I am compelled to say in this, “ They may be innocent of the offence.” I am equally bound to say that the proof, as it now stands, would not justify conviction of Hyler, Lynn, or Van Pelt. They must, therefore, be admitted to bail.

As regards Irving and Morrissey, I must go still further, and say that, upon the testimony, I am entirely clear; there is not only none on which a conviction can be had, but that the proof did not warrant the finding of the indictment. Whatever may have been the errors or the follies of either Irving or Morrissey, it will not answer to allow a precedent so dangerous to the liberty of the citizen as that of upholding an indictment based on testimony so utterly insufficient; and while the grand jury, in the proper discharge of its most' responsible and important duties, will always have the firm and steady support of this court, the court must, with equal firmness and fidelity, guard the personal rights of the citizen against the consequences of so dangerous a precedent as that of sustaining or favoring an indictment, the finding of which is so utterly unwarranted by the proof.

It only remains to fix upon the amount of the bail to be given by the several parties.

That of Irving, having been already fixed by Mr. Justice Morris, will remain undisturbed.

Morrissey must be admitted to bail in the sum of ten thousand dollars.

Hyler, Lynn, and Van Pelt must be admitted to bail in the sum of twenty thousand dollars each.

Proper notice, in each of the cases, must be given to the district attorney of the persons proposéd as bail, that he may inquire into their sufficiency.

As to the other two parties, Turner and Pargene, who have applied for bail, it is only necessary to say, that the application in their behalf must be denied.

Mitchell, Morris, Roosevelt, and Clerke, Justices.  