Ex parte Curtis

Beatty, C. J. On the twelfth day of October, 1891, the petitioner was, by the police court of the city and county of San Francisco, held to answer, without bail, upon a charge of murder alleged to have been committed in said city and county on the eleventh day of September, 1891.

ITis petition for the writ of habeas corpus is based [189]upon sections 1490 and 1491 of the Penal Code, which provide that when a person is imprisoned or detained in custody on any criminal charge for want of bail, such person is entitled to a writ of habeas corpus for the purpose of giving bail, etc.; and the sole question for decision is, whether, upon the evidence relating to the offense charged, the prisoner ought to be released on bail. A prisoner charged with any offense not punishable with death is entitled, before conviction, to be admitted to bail as a matter of right, but a defendant charged with an offense punishable with death cannot be admitted to bail, when the proof of his guilt is evident or the presumption thereof great. (Pen. Code, secs. 1270, 1271; Const., art. I., sec. 6.) Murder of the first degree, only, is punishable with death, and the question therefore reduces itself to this: Is there, upon the evidence in the case, evident proof or a strong presumption that the petitioner is guilty of murder in the first degree ? In determining this question, it is necessary to ascertain the proper construction of the expressions “proof is evident,” “presumption is great.” An examination of the decided cases discloses a wide variance of opinion upon this point, some courts and judges holding that the prisoner is entitled to bail, unless the evidence against him is such as ought to satisfy a trial jury of his guilt beyond any reasonable doubt; others, that bail should be denied when the evidence is sufficient to warrant a grand jury in bringing in an indictment, or, what practically amounts to the same thing, when the evidence is sufficient in law to sustain a capital conviction. Such is the rule that has been adopted in this court. (Ex parte Troia, 64 Cal. 152.) In that case the evidence was extremely conflicting, and tended very strongly to discredit the only witness who claimed to have been present at the homicide. (The prisoner was, in fact, afterwards acquitted.) But this court, in denying the application for bail, said: “We cannot say, upon the evidence before us, that the superior court ought to set aside the verdict, as not justified by the evidence, should [190]