Ex parte Wray

Fishee, J.: The petitioner, being in custody, awaiting his trial upon an indictment preferred against him by the grand jury of Pontotoc county, for the murder of one Clarke S. Brown, applied to the judge of the seventh judicial district of this state to be admitted to bail; and the court, after hearing the testimony, as well on behalf of the petitioner as of the prosecution, refused the application, and remanded him to the custody of the sheriff of said county. The object of the writ of error is to revise the judgment thus pronounced. We have given to the testimony, as shown by the record, a patient consideration; and our minds are forced to the conclu-sion that under the law which must govern the court in weighing the evidence, the charge of murder, as made by the indictment, can not be sustained, and this settles the question as to the prisoner’s right to bail. It is neither required nor proper that we should intimate an opinion, either as to the innocence of the accused, if we entertain it, or as to any degree of manslaughter of which he might be thought guilty. The question is unimportant so far as the present application is concerned, whether the party be wholly innocent, or whether the offense, if falling below the crime of murder, be attended with aggravated circumstances; the result in either case is the same ; the party is entitled to his liberty, and the court has nothing to do but to follow the mandate of the constitution on this subject and admit the party to bail, on his giving, in the language of that instrument, good securities. The provision of the constitution is as follows: “That all prisoners shall, before conviction, be bailable by sufficient securities, except for capital offenses, where the proof is evident or the presumption great.” The inquiry is, whether the [877] proof in this case is evident, or the presumption great; that is to say, is the offense, as shown by the whole testimony, one which must, under the law, be capitally punished; for, if so, while a court might, in the exercise of a sound discretion, admit a party to bail, he could not certainly claim it as a right. But if the offence is not shown by evident proof or great presumption, to be one for the commission of which the law inflicts capital punishment, bail is not a matter of mere discretion with the court, but of right to the prisoner. But we will proceed to state, with as little comment as possible on the testimony, the grounds of our opinion. We have seen, that the constitution requires that the proof must be evident, or the presumption great. Evident proof, or great presumption, of what ? That the offense as shown by the testimony, is one which the law denominates as capital. When is a party committing a homicide guilty of a capital offence ? The answer is, when he is prompted by malice to commit the deed;— for without malice there can be no murder; and if in this case there is no murder, there is, of course, within the meaning of the constitution, no capital offense. As no question can arise, under the testimony in this case, as to implied malice, we will inquire whether there is sufficient proof of express malice, or, in. other words, whether the proof is evident, or the presumption, arising from the facts and circumstances, great. “ Express malice is when one, with a sedate, deliberate mind, and formed design, doth kill another; which formed design is evidenced by external circumstances, discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm.” 4 Black. Com., 199. We will now, ⅛ a very brief manner, glance at the testimony ; keeping in view what has already been intimated, that as little of it as is possible to present the point, will be noticed, or made the subject of comment. Brown, the deceased, was a teacher in the Male Academy at the town of Pontotoc ; two of the prisoner’s younger brothers were pupils of this school; the younger brother had been, about a week before the killing, whipped by Brown; but this does not appear to have. been noticed by the prisoner. About ten o’clock on the day of the killing, which [878] occurred about twelve o’clock, or a few minutes thereafter, the elder of the two brothers was expelled from the school; and the prisoner, being informed of what had occurred, applied to one or two persons for' weapons ; manifesting at the time, both excitement and distress of mind. He stated, it seems, to all who approached, on this subject, that his object was to seek an explanation from Brown, and that if he had to have a difficulty with him, he should not use his weapons, but that if the schoolboys, in the language of the testimony, “ pitched in,” he would use his weapons in defending himself. After a conference with the president of the board of trustees, and being told by him that he, the prisoner, could go and see Brown,' relative to the expulsion of the brother from the school, he repaired to the school-house and inquired for Mr. Brown. Being informed that he was busy, and could not be seen, the prisoner left a message that he would see Brown on his way to his boarding-house to dinner. School being a few minutes thereafter dismissed, Brown, informed of the message left by the prisoner, started to his boarding-house, travelling his usual path, or road. The parties met on this path—appeared to converse a short time, when the prisoner was heard to use an epithet, and was seen almost at the same moment to strike with his fist about the shoulder of the deceased. The deceased was almost at the same instant seen to draw from his side pocket, what the weight of evidence shows to be a whip, and with it, to strike the prisoner a severe blow on the head, felling him almost to the ground. The prisoner, catching to the clothes of the deceased, recovered from the fall, and commenced backing; the deceased continuing to use this whip, and to follow up the prisoner. The evidence shows that he backed or retreated about thirty yards before getting out his weapon, with which he inflicted the mortal wounds on the body of the deceased. The testimony shows that the whip, in the hands of a strong man, was a formidable weapon, having in the butt-end about two and a half ounces of lead, covered in the usual way. This is as briefly as it can be stated, the substance of the evidence tending to prove malice. Let it be conceded, that the fact of procuring weapons, going to the school-house, and waiting on the road, must be regarded [879] as a circumstance tending to prove malice, if unexplained. But bow is the testimony when accompanied by the whole explanation. 1. The declaration of the prisoner at the time of seeking the weapons, that he did not intend to use them on the deceased. 2. He commenced the difficulty by giving a moderate blow with his fist, thus indicating that his declaration was sincere, and consequently there was no sedate, deliberate mind, or formed design, to kill the deceased. 3. No attempt or effort was made to use his weapon in the difficulty, until the resistance had become altogether dispropor-tioned to the assault, and until he was so closely pressed that he may be supposed to have acted as much, or more, from the instinct of man’s nature, than from reason, or in carrying out a former design to kill his antagonist. The worst, under the whole evidence, that can be said against the prisoner, is, that a doubt may exist as to the malice; and if a well-founded doubt can even be entertained, then the proof can not be said to be evident nor the presumption great; and if our decision rested alone on this ground—a well-founded doubt—we should feel ourselves compelled to bail the prisoner. Judgment reserved, and judgment in this court, admitting the prisoner to bail.