thereby recognized to appear within ten days after the same is so taken.

Where a prisoner is let to bail out of court, the recognizance taken must be filed as required by the statute before any action can be taken upon it by the court, and no suit can be maintained upon such a recognizance without averring in the complaint and proving on the trial that it had been filed or made a record of the court in which it was returnable.1

§ 49. OF THE DISCRETIONARY POWER TO BAIL.

The power to bail is incident to the power to hear and determine.2

The object of an arrest and imprisonment before trial and conviction is not the punishment of the delinquent, but to secure his forthcoming to abide his trial; and the probability of flight to evade the punishment must be taken into consideration on an application to admit to bail.3

So, also, should the nature of the crime charged, the kind and degree of punishment affixed to it, and the probabilities of conviction, be taken into account upon determining this question, tion, so that the letting to bail will, in all reasonable probability, secure his forthcoming to abide the event of the trial.4

Blackstone says, that wherever bail will answer the same intention as a commitment for safe custody, it ought to be taken, as in most of the inferior crimes; but in felonies and other offences of a capital nature, no bail can be a security equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit, to save his own life, and what satisfaction or indemnity is it to the public to seize the effects of them who have bailed a murderer, if the murderer himself be suffered to escape with impunity.5

In cases of felony the defendant cannot demand, as a matter of right, to be released from imprisonment and let to bail.

Upon a question of bail, before indictment on a charge of murder, where the accused, after having been committed by the cor

Peo. v. Shafer, 4 Park., 45.

1 Whee. Cr. Cases, 436

• Peo. v. Goodwin, 1 Whee. Cr. Cases, 447.

Peo. v. Dixon, 4 Park., 651; 3 Abb., 395.

4 Blac. Com., 297.

Peo. v. Dixon, 3 Abb., Pr. R., 396.

oner, is brought before a supreme court justice on habeas corpus, it is said that examinations before the coroner may and should be looked into, to ascertain whether a crime has been committed; and if so, the strength of the proofs to support it; and if such examination show that the crime, if any, does not exceed the grade of manslaughter, and a fair doubt exists whether the defendant has committed any felony, bail should be taken.1

But where the application is made after indictment, it has also been held that, in considering whether there is sufficient evidence of guilt to render conviction probable, the judge should not go behind the indictment to examine the depositions taken before the committing magistrate; that the indictment raises a violent presumption of guilt.2

Although, in another case, it is said that, under the provisions of the Revised Statutes, allowing grand juries to keep record of the testimony, the court may look into such record, and bail the prisoner if the testimony is insufficient.3

It was formerly said by Chitty, that where a felony is positively charged bail will be refused, though an alibi be supported by the strongest evidence. The author cited a case of robbery, and eight credible witnesses making affidavit that the prisoner was at another place when the robbery was sworn to have been committed, yet the court refused to admit him to bail; but ordered him to remain until the assizes.5 Also in another case, cited by the same author, it was alleged that the prisoner had before been tried for murder and acquitted, afterwards, on proof of facts exactly similar to those in question at his former trial, a justice of the peace issued a warrant charging him with another murder, and he was again committed; on his being brought up by habeas corpus his counsel offered to show his former acquittal, yet the court refused to hear the proof.

On this authority Mr. Chitty laid down the rule to be, that the court will not look into extrinsic evidence at all. He states

1 Peo. v. Beigler, 3 Park., 316.

1 Peo. v. McLeod, 25 Wend., 483-568; Peo. v. Dixon, 3 Abb., 395; 4 Park., 651.

' Peo. v. Hyler, 2 Park., 570; 10 How., 567.

Chit. Cr. L.

Rex v. Greenwood, 2 Str., 1138.

1 Barnardist K. B., 250, S. C.

a case where the same question came up in regard to an inferior crime, receiving stolen goods with a guilty knowledge. The prisoner's affidavit denied his knowledge, yet the court refused to bail, saying the fact of knowledge was triable by a jury only; that to hear defensive matter, through ex parte affidavits as a ground for bailing the prisoner, would be to trench on the office of the jury; for, in the cases of high crimes, bail would be equivalent to an acquittal. The rule laid down in Horner's case1 is, in effect, that stated by CHITTY.

The rule has also been laid down in this State that mere evidence of innocence cannot be used as an argument for letting the prisoner to bail, if the application is after indictment found.2

And in a still later case in the New York Oyer and Terminer, the rule was stated to be that on a motion to admit to bail on an indictment for murder, upon the testimony taken before the coroner and before the grand jury, the defendants will not be permitted to furnish other proof, either by affidavits or oral testimony, tending to establish their innocence.3

HAWKINS lays down the rule that in a case of felony, bail is only proper where "it stands indifferent whether the party be guilty or innocent," and that it is not to be allowed where the accused is notoriously guilty. This rule was followed by the Supreme Court in ex parte Taylor.5

Where the punishment is death or a degrading punishment, the presumption is strong that the accused will attempt to evade the demands of justice, and in admitting to bail regard should therefore be had, as well to the nature of the punishment, as to the probable guilt of the party, and the safest course where the guilt of the prisoner is clear, is to deny bail.

Whether the prisoner is to be bailed or not, rests in the discretion of the court, but this discretion is a judicial discretion, and the court should be guided in its exercise by the circumstances of the case, and the rules of law applicable to such circumstances. The power to bail being undeniable, the question is, will it be

1 1 Leach, 270, 4th London edition, 1815.

Peo. v. McLeod, 1 Hill, 377; Peo. v. Restell, 3 How. Pr., 251. Vide Peo. v. De Groff, 1 Whee. Cr. C., 141.

Peo. v. Hyler, 2 Park., 570. 'Hawk. P. C., bk. 2, ch. 18, § 40. • 5 Cow., 39.

Peo. v. Van Horne, 8 Barb., 165.

a discreet and proper exercise of this power to admit the accused to bail under the circumstances of the case? In cases of felony, the prisoner cannot, as a matter of right, be admitted to bail. Whether he shall be let to bail is a question resting in the sound legal discretion of the court.1

Justice SUTHERLAND, in ex parte Taylor,2 says: the principal consideration is, whether the nature of the crime be such as that a recognizance would operate to secure the prisoner's appearance; the safest course in cases where the guilt of the prisoner is clear, is to deny bail.

It was held in the Court of Sessions in New York city, as a general rule, that where the prisoner is found in possession of stolen goods he cannot be bailed.3

One under indictment for felony may be bailed, if the district attorney consents.4

In Goodwin's case, the court said: It seems to me that the power to bail must be incident to the power to hear and determine. We have certainly power to discharge altogether. It is expressly given to us by statute, under certain circumstances, and without statute it necessarily belongs, as it appears to me, to a court having the power to try, as in all cases to which such power extends. If we have the power to grant a new gratuitous discharge, it must follow, I think, that we have the power to discharge sub modo. If we may discharge without bail, we may, a fortiorari, discharge upon bail. It seems to be admitted that when any person is charged with any felony above the degree of petit larceny (as to which there is a statutory provision), he cannot demand bail as of course, but that the court or magistrate having the power, are to bail him or not, in their discretion. Legal discretion, never means, either in civil or criminal cases, arbitrary will. Legal discretion is always to be governed or directed by known and established rules, and in truth cannot be otherwise applied than to decide whether facts bring the case within the operation of such rules. The well established rule of law applicable in this case is, that a person fully and explicitly charged with a felony cannot be bailed unless there be something

presented in opposition to the charge which may raise a presumption in favor of his innocence, or at least it must appear indifferent to the court or magistrate called on to bail him whether he is guilty or not.1

Though the action of a committing magistrate or court, on the question of admitting to bail, is the subject of review by an appellate jurisdiction, yet it is final as to other magistrates or courts of co-ordinate or concurrent authority on the same question, and where bail had been refused by the committing magistrate, and also by the court of general sessions, in which court the indictment was pending, and a justice of the supreme court afterwards decided at chambers to admit to bail, the decision was reversed on certiorari, by the supreme court sitting in general term, on the ground that the question was res judicata when brought before the justice of the supreme court. But when bail has been refused on account of insufficiency, the decision does not present a new application for a discharge on offering other bail.2

It was said in one case, that where the crime charged and the circumstances are such that a bail bond will afford reasonable assurance that the accused will appear to stand trial, it is his right that the bond should be accepted in lieu of his personal detention; that the right to detain for trial being a restraint upon personal liberty, is limited to the necessities of society, and when other adequate security can be had, the necessity for personal detention does not arise, and a resort to it is not warranted by law, but is illegal, unjust and oppressive; and in determining whether such security would be adequate, it is necessary to consider the nature of the offence charged, the probabilities of conviction, the penalty to follow it, and the position, sex, social and family relations, and pecuniary means of the accused.3

§ 50. OF THE AMOUNT OF BAIL REQUIRED.

The Constitution of the United States and of this State both declare that excessive bail shall not be required. What bail should be called excessive, must be determined by the officer letting to bail, on considering the circumstances of the case."

Peo. v. Goodwin, 1 Wh. Cr. Cas., 434.

2 Peo. v.

Cunningham, 3 Park., 531.

Art. 8 of Amendments.

Smith v. Trawl, 1 Root, 165.

Peo. v. Cunningham, 3 Park., 520. $5.