Spoífokd, J.
On the 7th of May, 1855, James Bell was imprisoned in the parish jail of East Feliciana, under a bench warrant, which recited that an indictment had been found against him for the crime of murder.
On the same day ho applied to the District Judge for a writ of 7taleas corpus, alleging that ho was entitled to his liberty, on giving bail, or to an entire discharge.
The writ was granted, and on the 9th of May came on for trial, when, it being- conceded by counsel that the warrant upon which said Bell was detained in custody was in due form, the prisoner was remanded to custody to answer the charge of murder preferred by the grand jury against him, and until he should bo discharged by due course of law.
Upon tho trial of the habeas corpus, the following bill of exceptions was taken :
“ Be it remembered, that on the trial of the writ of habeas corpus granted in the above case, tho accused offered two witnesses, Thomas J. Worsham and Beverly Howley on the stand, to show that he was entitled to bail under the facts and circumstances of the case prior to the finding of the indictment. To which tho District Attorney objected, on tho ground that an indictment had boon found by the grand jury against the accused for murder, which objection being sustained by tho Court, and the evidence rejected, the accused by his counsel excepts,” &c.
By the Court. — The counsel stated that it was conceded that the warrant was [426]*426in due form, but that, notwithstanding the finding of the grand jury, the court ought to hear the whole testimony, and admit to hail or not, as should appear from the testimony.
(Signed.) Edwin T. Merrick,
Judge, Seventh District.
The prisoner now asks this court for a writ of mandamus, ordering the District Judge to proceed to hear the evidence of the witness, and to admit him to bail or otherwise, according to the testimony.
The District Judge has waived the formality of a preliminary order, and sent up his answer to the application, consenting that a peremptory mandamus issue at once, if the reasons he assigns to the contrary are not deemed sufficient in law.
We observe in the outset, that, had the judge chosen to hear the proffered testimony, and thereupon had remanded the accused to prison, or admitted him to bail, or discharged him without delay, no appeal would lie to this court from either of such orders, as wo would bo without power to revise the acts of the judge in the exercise of the discretion confided to him. Ex parte Mitchell, 1 Ann. 413.
It is very doubtful whether we could employ the summary remedy of mandamus to review the discretion which has been exercised in the present case ; for, let it be observed that the judge granted the habeas corpus, and examined into the commitment and its cause; that he found the mittimus formal and the cause sufficient, to wit: a true bill of indictment for murder, found by a grand jury of the parish and pending in his court; that this finding furnished, to his mind, so great a presumption that the prisoner was guilty of a capital offence, that ho did not deem him bailable under the constitution and laws; and that the only complaint urged against the judge is, that being thus satisfied, he refused to hear two witnesses (whose names were not endorsed among the witnesses on the bill) to impeach the correctness of the finding.
Suppose he had hoard the two witnesses. No matter what they had testified, under his views of the law, he would still have been bound, in conscience, to remand the prisoner out of respect to the finding of the grand jury under oath, upon other evidence adduced at their secret inquest. To compel him to listen to these witnesses would, then, be an idle ceremony, as we could not review bis decision afterwards.
But, supposing the case to be properly before us, we are not prepared to overrule the opinion of the District Judge upon the law. That opinion has not been met by authorities or arguments at all equal to those in its favor.
Ohitty says: “ A man charged with murder by the verdict of a Coroner’s inquest, may be admitted to bail if it appears by the depositions to amount only to manslaughter, though not after the finding of an indictment by the Grand Jury ; the reason for which distinction may be, that in the first case the court have the depositions to examine, whereas in the latter case the evidence is secret, and does not admit of a summary revision. It is, in fact, to the depositions alone that the court will look for their direction, for where a felony is positively charged they will refuse to bail though an alibi is supported by the strongest evidence. Nor will the court at all admit of extrinsic evidence. So, that they refused to examine whether a man brought up before them had been previously acquitted of a charge precisely the similar. And the court refused to bail a person for receiving stolen goods, the defendant’s affidavit admitting [427]*427the receipt of the goods, but denying that he knew them to be stolen, because that was a fact triable only by a jury, and it would be of dangerous consequence to allow such proceedings, as it might induce prisoners generally to lay their case before the court, who, instead of the jury, would bo called upon to try the truth of the fact for which they were committed.” Ohitty’s Or. Law, p. 129. See also Petersdorff on Bail., p. 521.
This doctrine of the English courts was adopted by the Superior Court of the Territory of Orleans. In the case of The Territory v. Benoit, reported in 1 Martin, 142, the Grand Jury had found an indictment against the defendant for an assault with intent to murder, and the defendant moved to be admitted to bail. The court replied: ‘'“It cannot be done. Bail is never allowed in offences punishable by death, when the proof is evident or the presumption groat. On a Coroner’s inquest finding a person guilty of a capital crime, the Judges have often looked into the testimony which the Coroner is bound to record, and when they have been of opinion that the jurors had drawn an illogical conclusion, admitted the party to bail. But as the evidence before the Grand Jury is not written and cannot be disclosed, the same discretion and control cannot be exercised, and the Judges cannot help considering the finding of the Grand Jury as too great a presumption of the defendant’s guilt to bail him. We recollect no case in which it has been done. G. J. Mm'shall, who, on the examination of Aaron Burr, had admitted him to bail, concurred in the opinion of the court, that he was no longer entitled to that indulgence after the Grand Jury found a bill against him.”
The rule laid down in this case was affirmed in the subsequent case of The Territory v. McFarlane, 1 M., 216, though with a remark that it would not be rigidly extended to cases in which the defendant had not the benefit of a trial, during the term, when the continuance was not granted at his solicitation.
In the present case, it will be remarked that the the prisoner had not been confined two days when the habeas corpus was tried, and it does not appear that the State has ever had an opportunity to bring him to trial.
In ex parte
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Spoífokd, J.
On the 7th of May, 1855, James Bell was imprisoned in the parish jail of East Feliciana, under a bench warrant, which recited that an indictment had been found against him for the crime of murder.
On the same day ho applied to the District Judge for a writ of 7taleas corpus, alleging that ho was entitled to his liberty, on giving bail, or to an entire discharge.
The writ was granted, and on the 9th of May came on for trial, when, it being- conceded by counsel that the warrant upon which said Bell was detained in custody was in due form, the prisoner was remanded to custody to answer the charge of murder preferred by the grand jury against him, and until he should bo discharged by due course of law.
Upon tho trial of the habeas corpus, the following bill of exceptions was taken :
“ Be it remembered, that on the trial of the writ of habeas corpus granted in the above case, tho accused offered two witnesses, Thomas J. Worsham and Beverly Howley on the stand, to show that he was entitled to bail under the facts and circumstances of the case prior to the finding of the indictment. To which tho District Attorney objected, on tho ground that an indictment had boon found by the grand jury against the accused for murder, which objection being sustained by tho Court, and the evidence rejected, the accused by his counsel excepts,” &c.
By the Court. — The counsel stated that it was conceded that the warrant was [426]*426in due form, but that, notwithstanding the finding of the grand jury, the court ought to hear the whole testimony, and admit to hail or not, as should appear from the testimony.
(Signed.) Edwin T. Merrick,
Judge, Seventh District.
The prisoner now asks this court for a writ of mandamus, ordering the District Judge to proceed to hear the evidence of the witness, and to admit him to bail or otherwise, according to the testimony.
The District Judge has waived the formality of a preliminary order, and sent up his answer to the application, consenting that a peremptory mandamus issue at once, if the reasons he assigns to the contrary are not deemed sufficient in law.
We observe in the outset, that, had the judge chosen to hear the proffered testimony, and thereupon had remanded the accused to prison, or admitted him to bail, or discharged him without delay, no appeal would lie to this court from either of such orders, as wo would bo without power to revise the acts of the judge in the exercise of the discretion confided to him. Ex parte Mitchell, 1 Ann. 413.
It is very doubtful whether we could employ the summary remedy of mandamus to review the discretion which has been exercised in the present case ; for, let it be observed that the judge granted the habeas corpus, and examined into the commitment and its cause; that he found the mittimus formal and the cause sufficient, to wit: a true bill of indictment for murder, found by a grand jury of the parish and pending in his court; that this finding furnished, to his mind, so great a presumption that the prisoner was guilty of a capital offence, that ho did not deem him bailable under the constitution and laws; and that the only complaint urged against the judge is, that being thus satisfied, he refused to hear two witnesses (whose names were not endorsed among the witnesses on the bill) to impeach the correctness of the finding.
Suppose he had hoard the two witnesses. No matter what they had testified, under his views of the law, he would still have been bound, in conscience, to remand the prisoner out of respect to the finding of the grand jury under oath, upon other evidence adduced at their secret inquest. To compel him to listen to these witnesses would, then, be an idle ceremony, as we could not review bis decision afterwards.
But, supposing the case to be properly before us, we are not prepared to overrule the opinion of the District Judge upon the law. That opinion has not been met by authorities or arguments at all equal to those in its favor.
Ohitty says: “ A man charged with murder by the verdict of a Coroner’s inquest, may be admitted to bail if it appears by the depositions to amount only to manslaughter, though not after the finding of an indictment by the Grand Jury ; the reason for which distinction may be, that in the first case the court have the depositions to examine, whereas in the latter case the evidence is secret, and does not admit of a summary revision. It is, in fact, to the depositions alone that the court will look for their direction, for where a felony is positively charged they will refuse to bail though an alibi is supported by the strongest evidence. Nor will the court at all admit of extrinsic evidence. So, that they refused to examine whether a man brought up before them had been previously acquitted of a charge precisely the similar. And the court refused to bail a person for receiving stolen goods, the defendant’s affidavit admitting [427]*427the receipt of the goods, but denying that he knew them to be stolen, because that was a fact triable only by a jury, and it would be of dangerous consequence to allow such proceedings, as it might induce prisoners generally to lay their case before the court, who, instead of the jury, would bo called upon to try the truth of the fact for which they were committed.” Ohitty’s Or. Law, p. 129. See also Petersdorff on Bail., p. 521.
This doctrine of the English courts was adopted by the Superior Court of the Territory of Orleans. In the case of The Territory v. Benoit, reported in 1 Martin, 142, the Grand Jury had found an indictment against the defendant for an assault with intent to murder, and the defendant moved to be admitted to bail. The court replied: ‘'“It cannot be done. Bail is never allowed in offences punishable by death, when the proof is evident or the presumption groat. On a Coroner’s inquest finding a person guilty of a capital crime, the Judges have often looked into the testimony which the Coroner is bound to record, and when they have been of opinion that the jurors had drawn an illogical conclusion, admitted the party to bail. But as the evidence before the Grand Jury is not written and cannot be disclosed, the same discretion and control cannot be exercised, and the Judges cannot help considering the finding of the Grand Jury as too great a presumption of the defendant’s guilt to bail him. We recollect no case in which it has been done. G. J. Mm'shall, who, on the examination of Aaron Burr, had admitted him to bail, concurred in the opinion of the court, that he was no longer entitled to that indulgence after the Grand Jury found a bill against him.”
The rule laid down in this case was affirmed in the subsequent case of The Territory v. McFarlane, 1 M., 216, though with a remark that it would not be rigidly extended to cases in which the defendant had not the benefit of a trial, during the term, when the continuance was not granted at his solicitation.
In the present case, it will be remarked that the the prisoner had not been confined two days when the habeas corpus was tried, and it does not appear that the State has ever had an opportunity to bring him to trial.
In ex parte Taylor, 5 Cowen, 56, it was said by Sutherland, J., that “the indictment must be taken as conclusive upon the degree of the crime.”
In the case of The People v. McLeod, 25 Wendell, 568, reported also in 1 Hill, 392, Cowen, J., remarked that “ Nothing is better settled on English authority than that on habeas corpus, the examination as to guilt or innocence cannot, under any circumstances, extend beyond the depositions or proofs upon which the prisoner was committed.” And in that case, it was held that the prisoner had not the right upon habeas corpus of going behind the indictment and proving that he was not guilty. Notwithstanding a statute of New York authorized a prisoner upon the return of the writ, “ to deny any of the material facts set forth in the return, or to allege any fact to show either that his imprisonment or detention was unlawful, or that he was entitled to his discharge.” See also Hight v. United States, 1 Morris, 407; The State v. Drew, 1 Taylor’s (N. C.) R., 147.
In The People v. Van Horn, 8 Barb. Sup. Court R., 158, it was said that the general rule in cases of felony is that an indictment is to be deemed conclusive of the guilt of the accused, so as to prevent him from being enlarged upon giving bail, although there are several circumstances arising after indictment which may entitle the party to bail and thus constitute exceptions to the rule. And in Archer’s case, 6 Grattan, 705, the court held that a prisoner indicted for [428]*428felony might be let out on bail where his continued confinement would endan-g'er his life. See also United Stales v. Jones, 3 Wash. C. C. R., 224. So, where the trial of the indictment has been twice postponed without his assent or fault. Ex parte Stiff, 18 Ala., 404.
In The State v. Hill, 1 South Carolina Court Rep., 242, there was a motion to reverse the decision of the Justice of the Court of General Sessions and to liberate the prisoner upon bail. The Session Justice had refused to hear affidavits tending to show that the prosecution was instituted from malice or mistake, and, being under the impression that, after bill of indictment found in a capital case, he had no power to hear evidence to contradict the finding on an application for bail.
The motion was discharged, Justices Nott and Grimke being of opinion that, as the matter was confided to the discretion of the Judge, the constitutional court should not interfere, although they thought ho might have heard the evidence and admitted the party to bail had ho chosen. Justice Smith being of opinion that the Judge below was right in refusing to listen to the evidence, and Justices Brevard and Colcock being of the opposite opinion.
In The Commonwealth v. Rutherford, 5 Randolph, 647, the General Court of Virginia said that on a petition from one in confinement under the judgment of an examining court, the Judge may hoar testimony other than the depositions taken on the prisoner’s examination, and that even an indictment by the Grand Jury would not necessarily exclude other evidence on the question of bail. This opinion was based mainly upon the peculiar provisions of a statute of Virginia.
Upon a review of the authorities, we conclude that, although the propriety of admitting to bail prisoners accused of crime before conviction, seems to have boon, in all cases, entrusted to the sound discretion of Judges empowered to issue the writs of habeas corpus, yet the fact that the Grand Jury have found a true bill of indictment for a capital offence, has generally been considered as affording a sufficiently strong presumption of the prisoner’s guilt to preclude any further inquiry into the merits of the case upon habeas corpus ; that no such inquiry has ever been permitted, except upon the suggestion of circumstances of the most special and extraordinary character; and that wo will not interfere to compel a District Judge to listen to evidence offered, as in the present case, for the purpose of showing that, under the facts prior to the indictment, the prisoner is entitled to bail, but, on the contrary, we express our unanimous approval of the course pursued in this instance by the Judge who rejected the evidence.
The petition for a mandamus is therefore dismissed at the costs of the applicant.