Ex parte Fortenberry

Chalmers, J., delivered the opinion of the court. This is an appeal from the judgment of a chancellor denying bail to the relator, who is incarcerated on a charge of murder. Counsel for the relator insist with great earnestness, that, inasmuch as the giving of bail is a constitutional right by the provisions (§ 8 of'art. 1) of the Bill of Rights, “ except for capital offences, when the proof is evident or presumption great; ” and inasmuch as by the statutes of the State it is left discretionary with the jury, upon conviction of the highest grade of crimes known to our laws, to inflict death or imprisonment for life at their pleasure, — there are no longer any offences necessarily capital in this State, and that consequently there is a constitutional right to bail in all cases. It is admitted that an oral opinion to the contrary was announced by this court in Ex parte BonnelM, some years ago; but it is urged that some more formal expression of our views be given, upon mature consideration. Yielding to the suggestion, we now declare that the view contended for is wholly untenable, as is evident from the letter of the statute, which is in the following words : “ That in all cases where any person or persons, upon conviction of crime, shall or may be punishable with death, the jury may, in their discretion, in their verdict declare that the penalty or punishment shall be imprisonment for life ; but if the jury shall omit to so declare the penalty in their verdict, then the court shall pronounce the death-penalty.” Acts 1875, p. 79. It is manifest that offences heretofore capital remain so, under this statute, but with discretion in the jury to award a different penalty. Death is the rule, imprisonment the exception. An indictment, therefore, for a crime heretofore capital must still be regarded as an indictment for a capital offence ; and it does not lose this character until the jury, in the exercise of the discretion vested in them, shall so declare. Prima fade, therefore, it must be treated by the courts as a capital indictment, until this discretionary power in the jury has been by them exercised. If this view needed to be strengthened, much weight should be given to the fact that constitutional and statutory provisions [431] similar to our own are common to many of the States, but in none of them, so far as we are advised, has it been held that their effect was to make all cases bailable of right. Upon the facts of the case we make no comment. Appeals in cases of this character, as in all others in this court, are predicated upon the assumption that there is error in the judgment. Without desiring to be understood as expressing any opinion as to the guilt of the prisoner, we do not feel at liberty, after a careful consideration of the case, to say that the Chancellor erred. Judgment affirmed.