
    BABCOCK’S CASE.
    
      Supreme Court, First District; At Chambers,
    
    
      December, 1866.
    Bail in Criminal. Cases.
    Of the right to be admitted to bail in criminal' cases.
    Where a person is indicted for crime before his arrest, a police justice or a justice of the Supreme Court has no power to let him to bail during the session of the court having jurisdiction to try the indictment.
    The Court of Sessions are not authorized, upon such an indictment and arrest thereon, to send the case to a police justice for examination; and an order assuming to do so does not affect the question of power to bail
    The prisoner, William B. Babcock, was arrested on a charge of being concerned in a robbery of Government bonds from ' Bufas L. Lord. On the 20th of November, 1866, an indict-merit was found against him in the Court of General Sessions for receiving the bonds, knowing them to be stolen. On the 21st of November, by order of the court, the papers were sent to the police justice for further examination; afterwards the justice refused to take bail, and on the 1st of December the writ in this case was issued, returnable forthwith. This was not a writ of 'habeas corpus, but was a writ commanding the police justice and clerk of the Sessions to certify the cause of the detention of the prisoner for the purpose of considering the question of bail. After this writ was allowed, a commitment of the prisoner, by order of the Court of Sessions, was granted. This-application is now made to have the prisoner bailed.
    
      John Graham, for the motion.
    I. The statute regulating the writ of habeas corpus is peremptory in requiring the court to bail the defendant, “ if the case be bailable.” This is to be done, first, if it appears that the defendant “ has been legally committed for any criminal offence or secondly, if it appears from the testimony offered with the return, or on the hearing thereof, that he is guilty of such an offence, even though his commitment may be irregular. In both these cases the court must bail him, if two requisites exist, namely, “if the case be bailable, and good bail be offered ” (2 Rev. Stat., 568, § 43).
    II. This statute clearly shows that some cases are bailable, as a matter of right. The language is, if the case be bailable,” and not if the court in its discretion decides it to be bailable. A case cannot be intrinsically bailable, unless there is some legal scale or standard determining the right to bail, or not.
    III. The provision in our State Constitution that “ excessive bail shall not be required,” also proves that some cases must be bailable, as a matter of right. To hold that the provision is only obligatory after a court decides that a case is bailable, is to defeat the provision altogether. Such a construction makes the right to bail, at all, wholly dependent upon judicial discretion. The Constitution must mean that in all cases bailable as a matter of right, excessive bail shall not be required (Art. I. State Const., sec. 5).
    IY. Another provision of the State Constitution forbids the exercise of an arbitrary discretion as to admission to bail. It is this—“ nor shall cruel and unusual punishments be inflicted'’' (sec. 5). What more cruel or unusual punishment than to condemn a man to a hopeless and inactive imprisonment, in advance of his conviction % It is a confinement more intolerable than that inflicted, by way of punishment, after conviction. The very labor, which is a part of the latter, and is designed to increase its terrors, is more endurable than solitude and inaction.
    Both these provisions occur for the first time in the Constitution of 1846. They constitute Article 8 of the Amendments of 1789 to the Constitution of the United States. The Federal Constitution, in these particulars, does not apply to or control the States (2 Story on Const., § 1, 1903-4). The principles by which these provisions are to be interpreted, are there stated.
    Y. It cannot be said that the defendant was taken “ with the mainour,” or “ in flagrante delicto,” for although stolen bonds are claimed to have been traced to his possession, it is proved that he told where he got them, and his statement is not falsified. It must be borne in mind that when the defendant was indicted, which was the origin of the accusation against him, the prosecution had no evidence at all upon which to rely as cxhibitory of guilt. On the examination before Justice Dowling, no circumstance appeared which could in any way implicate the defendant, until certain alleged admissions of his were testified to by Captain Jordan. These were not made, if at all, until after the defendant’s arrest. Every circumstance up to that time was .calculated to prove the correctness of the defendant’s possession of the bonds. He took them to the usual market to be sold, and they were sold and accounted for in the usual way. The transaction literally occurred in “ market overt.” There was no secrecy-or concealment about it. It is strange that, after all this, the defendant should have told Captain Jordan what has been testified to.
    YI. If the defendant’s alleged admissions show that he is guilty, he is entitled to bail still, under section 43 of the statute. His guilt, before conviction, does not shut off the right to bail, “ if the case be bailable.” Admissions, however, are not sufficient to convict, made under the circumstances of the present. They would stand precisely within the principles enunciated by the court of appeals in The People v. McMahon (15 N. T. R., 384), and Be discredited by the disturbing influences which must have operated upon the defendant’s mind.
    VII. At least, it is very extraordinary that the defendant’s conduct, before arrest, should exculpate him ; while his tongue, after arrest, should inculpató him.
    VIII. If there are no cases bailable as matter of right, and the privilege of bail rests with the court, it must be controlled by a sound, judicial, and not arbitrary discretion. Such a discretion may become as fixed, by reason of precedents or otherwise, as if positively and absolutely fixed by a legislature.
    IX. Even if the court has the most arbitrary discretion in the matter, the present application for bail ought to command it in its favor (2 Hale P. C., 125 [1st Am. ed.], note 4).
    X. Within the well-settled principles and precedents, the defendant is entitled to bail (2 Hale P. C., 133, 135; Exp. Taylor, 5 Cow., 39; The People v. Lohman, 2 Barb., 450).
    XI. To withhold this right, when nothing is pretended against the defendant’s general character—when he voluntarily returned to this State, on hearing that there was trouble about the bonds he had had in his possession; when the prosecution do not pretend that bail will not produce his body for trial on the indictmentwhen there is not a single reason why he should stand as an exception to the general rule, other than that the prosecution do not want him to be bailed—would be consistent with no previous practice, and no judicial propriety.
    XII. If the defendant is assumed to be guilty of a felonious receiving of the bonds in question, there is a doubt as to whether his act amounts to a “ legal ” crime. The opinion is,. to say the least, divided as to whether tire statute relative to receivers embraces any other class than those who deal directly with the thief. To receive from a receiver may be a crime, but may not be a “legal” crime (2 Bishop on Cr. Law, vol. 2, § 953).
    XIII. It is by no means certain that the indictment is good. It charges the reception of property by the defendant, alleged to have been stolen by an unknown thief, when the testimony before Judge Dowling leaves no doubt that the thieves are-perfectly well known, are communicated with by the officers of justice, and yet, for some cause or other, are concealed, or not brought to punishment (White v. The People, 32 N. Y., 465).
    
      XIV. It cannot be said that any denial of bail by Justice Dowling interferes with the defendant’s present application to be bailed. The defendant had been indicted in the court of general sessions, and that court, on the motion of defendant’s counsel, simply sent the complaint to that magistrate to take evidence, and make a return to the court. He was not to bail, ór do more than report his judgment upon the facts to the court.
    XV. The commitment of the defendant by the court of general sessions, on the third of this month, without bail, cannot prejudice the present application either. It accrued on the ex parte motion of the district attorney, with' no notice to the defendant or his counsel to be there to protect his rights. Ho papers were submitted to the court, and it was a bold exercise of power or authority. (MSS. decision of Judge Edmonds, holding the N. Y. Oyer and Terminer, Dec. 17th, 1849). Hot only was the order of the court of sessions tainted with the legal vice of interfering, or seeking to interfere with, or defeat the writ of habeas corpus, but the court had no jurisdiction of the body or person of the defendant, and its order was null. There was no plea to the indictment—the defendant was not present— no counsel appeared for him—and the motion for the order was made by the people. (The People v. Cunningham, 3 Park. Cr., 531, per Clerke, J., 542, 543).
    XVI. That portion of the return of the warden of the city prison to the writ of habeas corpus should be stricken out. It was put in two days after the original return was made and completed, and its matter accrued several days after the issuing of the writ.
    XVII. The writ is to be disposed of upon the facts as they existed at the time it was issued, or, at all events, upon the facts existing at the time the original return was made.
    ■ XVHI. The right to bail before trial and conviction is, or ought to be, the general rule. Such is believed to be the spirit and design of our government. The United States Judiciary act of 1789 (cited in 2 Hale P. 0. [1st Am. ed.] 127, note 8), com-, pels the taking of bail by the federal authorities in all criminal ^ cases whatever, except murder,which is subjected to the discretion "’ of those empowered to take bail for such an offence. Many of the State constitutions provide that “All prisoners shall be bailable “ by sufficient sureties, unless for capital offences, where the “ proof is evident or the presumption great. (/§.)
    XIX. Hie defendant should be enlarged upon a reasonable amount of bail. The indictment was found without the least proof as to the scienter which is now sought to be made out by-confessions wrung from him after arrest; it does stand indifferent whether the defendant is guilty or innocent of the accusation against him (5 Cow., 51); the court “ will bail whenever there is any doubt on the law or the fact of the case ” (Id., 58), and as there is doubt as to the defendant’s guilt, and he may be innocent, he is entitled to bail (5 Cow., 60).
   Ingraham J., (after stating the facts)

Several questions of importance as to the right of a prisoner to be discharged on bail have been ably argued before me, but the views which I entertain in regard to this application are such as to render the decision of these questions unnecessary in the present case.

1st. The indictment having been found against the prisoner . before his arrest, it was unnecessary to have any examination before a magistrate, and it became the duty of the court, on receiving the indictment, to order a warrant to issue for the arrest of the party therein charged with felony. The order of the sessions sending the case to Justice Dowling to be investigated was an unnecessary and irregular order, and did not alter the liabilities of the party or relieve him from the consequences which followed the finding of the indictment against him. The supposition,therefore,that it is simply a proceeding to review Justice Dowling’s decision, not to admit the prisoner to bail— upon the ground that the prisoner, in offences of this character, has a right to be bailed—is a mistake. The justice, when the case was sent back to him for further examination, did not acquire any right to let the prisoner to bail. That power ceased whenever a bill of indictment was found, and that indictment remained in full force against the prisoner notwithstanding the order of the General Sessions. In fact, the order of that court sending back the case to the police justice was an unusual proceeding, not provided for by the statute, and not required by any rule or provision of criminal law within my knowledge. I am referred to the opinion of Judge Edmonds in the case of Dewey on these questions, but there the case was in the and. Terminer; the Deweys had been arrested and brought before a magistrate, and had been deprived of the benefit of the examination provided by the statute, by being indicted before such examination was completed. But in that case the learned justice says:—“ It is true that a person may be indicted in the first instance without any preliminary- arrest, and thus by the action of the Grand Jury be deprived of the preliminary examination.” The opinion in that case does not apply here, and I do not feel at liberty to give any force to the orders of the General Sessions sending the case to Justice Dowling for examination, because the same was not warranted or required by the statute. The prisoner having been indicted in the Court of Sessions, that court had, during its session, the right to let the prisoner to bail. This is provided by the Be-vised Statutes, 3d vol., 5th ed., page 1,020, section 59. That section directs that in cases where by law persons indicted may be let to bail for their appearance, they may be.so let to bail by the court having jurisdiction to try the offence or, if such court be not sitting, by any j ustice of the Supreme Court, and if the offence may be tried in a Court of General Sessions, by a county judge ; and section 60 prohibits any other officer from letting to bail any person indicted for any offence. It is apparent from these provisions, that when the case was sent to" Justice Dowling he had no authority to let the prisoner to bail; and it is equally clear that during the session of the court having jurisdiction to try the offence, such court alone has authority under the statute to let to bail, and that a justice of the Supreme Court is only authorised to do so where the court has closed its session. It has also been suggested on this application that, as the Court of Sessions has committed the prisoner, the right to bail has been adjudicated. This was the decision of the General Term in the People against Cunningham, 3 Park. Cr. R., 520. Such would undoubtedly be the proper rule if the decision of the Court had been made before the allowance of the writ and such facts appeared in the return. It may well be doubted whether a proceeding on habeas corpus or certiorari can be defeated by such a commitment made after the allowance and issue of the writ. It is not, however, necessary for-me to-discuss this branch of the case? as for the reasons before stated I think the prisoner at this time can only be bailed by the Court, and'that a magistrate out of court has no authority until after the session of the court has terminated, and even then it might be considered res ad judicata if the Court during its session should pass upon such an application. The prisoner must be remanded to custody.  