In re Malison

Opinion by Clogston, C.: The respondent insists that because the petitioners have once waived preliminary examinations for the offense of murder in the first degree, they are not now entitled to have the charges against them investigated, orbe let to bail. We shall first consider this question: A defendant -who is charged with murder in the first degree, and who has waived a preliminary examination for such offense, not only waives his right to be let to bail, but also to have the facts and circumstances of the alleged offense examined into on a writ of habeas corpus. But to this rule there are exceptions; as where at the time of such waiver of examination there are good grounds to believe that if an examination is gone into, personal violence will be used against defendant, and under such apprehension an examination is waived, he will not be estopped by reason of such waiver. To be es-topped, he must have waived his right to an examination from a free choice, after a fair opportunity to have an impartial examination. No mere imaginary danger will be enough to justify it; but a well-grounded belief, founded upon such information or observation as would be calculated to excite fear of bodily harm in the mind of a reasonable person under like circumstances, will justify it. After a careful examination of the vast amount of testi [730] mony in this case, we are of the opinion that the defendants waived their preliminary examination from fear of personal violence. It must be remembered that at the time of their arrest great excitement prevailed in Wichita county, and great animosity and bad feeling existed between Leoti and Coronado,- two rival towns situated within three miles of each other. This feud and animosity had grown up over a county-seat contest and quarrel; and after defendants were arrested they were taken from Coronado to Leoti and confined in the second story of a frame building. Large bodies of armed men wer’e in the town, and many threats of violence were made by the friends of the men who had been killed. Under the fear of further bloodshed, the adjutant general went from Topeka to that county to prevent, if possible, additional trouble, and he, together with other citizens, counseled and advised the defendants to waive their examination. Under these circumstances we can readily see how they might waive their examination without losing their right afterward to have the charges against them investigated; and in doing so they are not es-topped from this inquiry. The second question to be considered is, are the defendants entitled to be discharged or let to bail ? The constitution, as well as the criminal code of this state, provides that persons charged with capital offenses shall not be admitted to bail where the proof is evident, or the presumption great. The evidence in this case is voluminous, and conflicting on many questions. On one question, however, there is no dispute: three persons were killed, under such circumstances as to constitute murder, if unexplained, and some others were wounded. As far as defendants are concerned, no explanation has been given; but in view of the fact that the question of the guilt or innocence of the petitioners must be submitted to a jury for their determination, we express no opinion in the case further than to say that on the evidence submitted t-o us the petitioners must be held for trial; and under all the circumstances, as we now understand them, (necessarily submitted iu an unsatisfactory way,) they are entitled to be let to bail. [731] It is therefore recommended that the petitioners be remanded into the custody of the officers having them in charge, that they be let to bail, and be required to give bonds each in the sum of three thousand dollars for their appearance at the next term of the district court of Wichita county. By the Court: It is so ordered. All the Justices concurring.