In Re Page

TYLER, P. J.

— Petition for a writ of

habeas corpus.

It is alleged therein that petitioner Frank E. Page is unlawfully imprisoned and restrained of his liberty by the sheriff of the county of Modoc, California; that he is so restrained pursuant to an order and bench warrant issued out of the superior court of said county charging him with the murder of one Pearl Connell. That prior to the filing of the information and as the basis thereof a complaint was filed before William Thompson, justice of the peace of Alturas township, county of Modoc, sitting as a committing magistrate, in which said complaint petitioner was charged with the crime of murder of the said Pearl Connell, and -thereafter and on the eighteenth day of March, 1927, a preliminary hearing and examination was held by such committing magistrate, and at the close thereof said magistrate made an order holding petitioner to answer on the charge: of murder. That at the time of the making of said order the attorney for petitioner moved the magistrate for an order fixing bail, which motion was denied and petitioner was committed to the sheriff of said Modoc County. That thereafter the district attorney of said county filed in the superior court of Modoc County the information referred to and petitioner was duly arraigned before the superior court and entered a plea of not guilty to the charge contained therein, and at that time counsel for petitioner moved the court for an order fixing bail and allowing petitioner to be discharged

[578]

upon giving such bail, which motion was denied. That the said imprisonment and detention is illegal, such illegality consisting in this: That the proof is not evident, nor the presumption great against petitioner, for which reason he is entitled to bail. It is petitioner’s contention that courts have no right to refuse a defendant bail even in capital cases unless the proof is evident or the presumption of guilt is great. There can be no question as to the correctness of this rule. Under the constitution all persons accused of crime are entitled to bail “unless for capital offenses when the proof is evident or the presumption great” (Canst., art. I, see. 6). In

habeas corpus

proceedings, however, the court ought not to anticipate the action of the jury by discharging a prisoner, charged with a capital offense with or without bail, upon evidence which it cannot say is so insufficient that a verdict requiring a capital sentence, should not be permitted to stand.