
    The State, ex rel. McClintock, Pros. Atty., v. Diehl, Judge.
    
      Criminal law — First degree murder — Jurisdiction to admit defendant to bail.
    
    (No. 20191
    Decided December 16, 1926.)
    In Prohibition.
    
      Mr. G. B. McClintock, prosecuting attorney, and Mr. II. G. Pontms, for plaintiff.
    
      Mr. Prank N. Sweitser, for defendant.
   By the Court.

This is an original action in this court, praying a writ of prohibition against the common pleas court of Stark county, to prevent that court from admitting one Rudner to bail, said Rudner being indicted on a charge of first degree murder. The clerk of the court is also made a party defendant. Both the judge and the clerk have demurred to the petition, and the petition and demurrer challenge the jurisdiction of the trial court, before trial, to hear and determine the right of a person under indictment to be admitted to bail. Upon the authority of Kendle v. Tarbell, 24 Ohio St., 196, the demurrer must be overruled, and the jurisdiction of the court must be denied.

Demurrer overruled.

Marshall, C. J., Day, Allen and Kinkade, JJ., concur.

Robinson, J., not participating.

Jones, J.,

dissenting. The principle here involved is of far higher importance than the consequences that may result to Rudner from the issuance of this writ. The real question is, May no one who is indicted for a capital offense be admitted to bail? The majority hold he may not. If that holding is made to apply to all cases, after indictment found, we may hereafter be confronted with a doctrine which may plague the courts and shock the judicial conscience. A situation may readily be conceived where, after indictment, facts may develop which conclusively prove the innocence of the accused. In such an event, are the hands of the judges tied, and must the accused still be kept in custody? I agree that, as stated by Judge White in the Kendle case, supra:

“The indictment raises the presumption required by the Constitution to justify the refusal of bail.”

But surely this presumption can be removed by facts, especially those developed after the indictment, which may prove his innocence. In the Kentile case, supra, Judge White conceded the jurisdiction of the court, where, in his opinion, he said that a motion for bail might be entertained under certain circumstances. These three principles are well fixed in our Ohio jurisprudence: (1) The jurisdiction of the court of common pleas and its judges is fixed by statute. (2) Jurisdiction was conferred on Judge Diehl in the instant case by Section 13534, General Code. (3) Where jurisdiction is conferred, a writ of prohibition will not lie to control judicial action or discretion.

Matthias, J.,

dissenting. I regret that I cannot concur in the judgment of the majority. I do not believe it is sustained by reason or weight of authority.

The question presented here is solely one of jurisdiction of a judge of the court of common pleas to admit to bail a person confined in jail, by taking a recognizance in such sum and with such sureties as to the judge seem proper, conditioned as required by law. If he has jurisdiction, clearly an action in prohibition cannot be maintained to prevent its exercise. Section 9, Article I, of the state Constitution, reads:

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

Who is to decide whether the proof be evident or the presumption great? This question was asked and answered by the Supreme Court in the case of State v. Summons, 19 Ohio, 139, as follows:

“Most undoubtedly, the same authority which prescribes the amount of bail and passes upon the sufficiency of the sureties.”

Section 13534, General Code, confers upon the common pleas judge the authority to admit to bail, before or after indictment, any person charged with the commission of a bailable offense. Such jurisdiction having been conferred, a writ of prohibition does not lie to prevent action which it is anticipated may be erroneous, even though amounting to a gross abuse of discretion.

The case of Kendle v. Tarbell, 24 Ohio St., 196, was an action in mandamus, and the court, upon application of a person charged with murder in the first degree, refused to require the judge to hear evidence, but did not have before it the question presented here, and did not decide that the common pleas judge had no jurisdiction to hear and determine the matter, for, in the course of the opinion, it is said:

“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. ” ,  