Ex parte Dusenberry

97 Mo. 504

• Court: Supreme Court of Missouri
• Decided: October 15, 1888
• Status: Published

Opinion

Barclay, J.

The petitioner obtained a writ of habeas corpus from this court with a view to his admission to bail. It appears that he is in custody by virtue of a commitment on a charge of rape.- An indictment for that offense has been duly found against him by the grand jury. The case has not reached its first hearing in the circuit court. Having been refused bail by Hon. E. M. Hughes, as trial judge, after a hearing of some evidence on the subject, defendant seeks to give it under this writ.

By the constitution it is provided : “ That all persons shall be bailable by sufficient sureties, except for capital offenses, when the. proof is evident, or the presumption great.” Sec. 24, Bill of Eights. We are hence to decide whether under our laws the petitioner is charged with a “capital offense.” His counsel has offered no evidence to remove the presumption arising from the indictment that “the proof is evident or the presumption great” (People v. Tinder, 19 Cal. 539; Ex parte Vaughn, 44 Ala. 417); but rests the demand for admission to bail on the theory that the charge is not a capital one, and is therefore bailable as. a matter of right. A very ingenious and able argument has been made in support of that theory. We have duly considered it.

By our statutes it is provided that every person convicted of this charge “shall suffer death or be punished by imprisonment in the penitentiary not less than five years, in the discretion of the jury.” R. S. 1879, sec. 1253. The offense may therefore be punished with death, but is not necessarily so punishable. A “capital offense” is one which is punishable — that is to say, liable to punishment — with death. This is the substance of the definitions by the lexicographers, both professional and lay. The offense, then, is a capital one within the meaning of the constitution.

But it is claimed further that the law in question is unconstitutional in delegating to the jury the discretionary power above indicated. It is suggested in this connection that should a defendant plead guilty, and no jury therefore be called, the court could pronounce no sentence, the power to fix the punishment being given to a jury only. In construing a law, we endeavor to give effect to the intent of the legislature as gathered from the language employed to express it, accepting the words used, in their plain, ordinary and usual meaning. So regarded, the law under review merely establishes a maximum and minimum of punishment for the offense. In this respect it does not differ in substance (though it may in form) from other statutes permitting a latitude in the assessment of punishment, for another section of the criminal law declares that ‘ ‘ in all cases of a verdict of conviction for any offense where, by law, there is any alternative or discretion in regard to the kind or extent of punishment to be inflicted,. the jury may assess and declare the punishment in their verdict, and the court shall render a judgment according to such verdict, except as hereinafter provided.” R. S. sec. 1929.

Should a defendant plead guilty to such a charge and no jury be therefore required, the court could lawfully proceed to sentence by virtue ■ of the section providing that “ in all cases of judgment by confession, the court shall assess and declare the punishment, and render judgment accordingly.” (Sec. 1930). That the legislature may lawfully vest in the triers of fact a power to determine the punishment within certain limits (as in the law here discussed) we do not doubt. The justice of doing so, and thereby permitting such a measure of punishment to be inflicted as the circumstances of each particular case may demand, was probably apparent to the law-makers and need not be discussed here.

The petitioner should be remanded and it is so ordered,

with the concurrence of all the judges.