Commonwealth ex rel. Condello v. Ingham

54 Pa. D. & C. 253, 1945 Pa. Dist. & Cnty. Dec. LEXIS 39

• Court: Pennsylvania Court of Common Pleas, Lawrence County
• Decided: October 4, 1945
• Docket: no. 14
• Status: Published

Opinions

Lamoree, J.,

This matter is before the court on a writ of habeas corpus wherein petitioner, Antonio Condello, seeks to be released from the Lawrence County jail on bail.

Petitioner was committed to the Lawrence County jail by Justice of the Peace J. E. Van Gorder, after a preliminary hearing on the charge of murder.

A hearing on the writ was held in open court on September 20, 1945, before W. Walter Braham, P. J., and John G. Lamoree, J. On September 27, 1945, arguments were heard in open court before W. Walter Braham, P. J.; William B. Purvis, P. J. (fiftieth judicial district, specially presiding) and John G. Lamoree, J.

Counsel for petitioner contends petitioner is entitled to bail as provided for in Article 1, sec. 14, of the Constitution, which states:

“All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great . . .”

Petitioner maintains that under the presumption that all murder shall be deemed to be murder in the second degree until the Commonwealth proves it to be murder of the first degree, petitioner is entitled to bail for the reason that the Commonwealth’s evidence failed to establish a case of murder in the first degree.

The Commonwealth contends that its evidence produced at the hearing was such as would warrant a court in sustaining a verdict of murder in the first degree and bail ought accordingly be refused.

For reasons readily obvious, we refrain from comment or discussion of the evidence.

While the present proceeding is not without precedent, yet the authorities thereon are not numerous. We find the following principle, which we deem pertinent, in Commonwealth v. Lemley, 2 Pitts., 362, 368:

“Some difference of opinion has arisen respecting the proper construction of the last member of this sentence; [referring to the constitutional provision that — ‘all prisoners shall be bailable by sufficient sureties, unless for capital offenses, where the proof is evident, or the presumption great’] and perhaps the thought is not very clearly expressed. It has been contended that it is necessary that ‘the proof’ should be ‘evident or. the presumption great’ that the offence charged to have been perpetrated, is really a capital one; and hence that, if any doubt exists as to what will be the degree of the crime, as ultimately fixed by the verdict, the prisoner is entitled to be bailed. I cannot agree to this construction. I think the clause in question has reference to the guilt of the prisoner, rather than the degree of the offence, ‘where the proof is evident, or the presumption great’ that the offence was committed by the prisoner. The degree of the offence is to be determined as a question of law; the guilt or innocence of the accused is a matter of fact, and there is much reason in requiring that ‘the proof shall be evident or the presumption great’ of the fact of his guilt before denying him the right of bail.”

The court in the case of Commonwealth v. Lemley, supra, adopts the rule laid down by Judge King in Commonwealth ex rel. Chauncey and Nixon v. Keeper of the Prison, 2 Ashmead’s Reports, 227, 234, wherein the court stated:

“. . . that assuming murder in the second degree to be a bailable offence, yet, that the power to discriminate and decide upon the degrees of murder, pertains to the jury which tries the offender, and is not properly exercisable by the judge, on a question of admitting to bail. In a given ease, in which a malicious homicide should be clearly shown, and in which the presumption was reasonably strong, that the malicious killing was done with an intent to take away life, I should pause before I undertook to decide as to what degree of murder the perpetrator was guilty of, in such an inquiry as that before me. It is difficult to lay down any precise rule for judicial government, in such a case; but, it would seem a safe one, to refuse bail in a case of malicious homicide, where the judge would sustain a capital conviction, pronounced by a jury, on evidence of guilt, such as that exhibited on the application to bail; and to allow bail, where the prosecutor’s evidence was of less efficacy. This appears to afford a practical test, by which the question of admitting to, or refusing bail, in malicious homicide, may be readily solved.”

In light of the foregoing, the majority of the court being of the opinion that bail ought to be refused, we are accordingly making the following

Order

Now, October 4, 1945, after hearing held and upon consideration of the allegations and proofs offered,the prayer of the petition is refused and the writ dismissed. Petitioner, Antonio Condello, is hereby remanded to the Lawrence County jail in conformity with the commitment made September 17, 1945, by Justice of the Peace J. E. Van Gorder.

Dissenting opinion