Simrall, J.:
The sheriff returned on the writ that he held the relator in custody under arrest by bench warrant, to answer an indictment for murder.
The defendant rested his case, and moved for discharge [18]*18upon or without bail; but the court refused to discharge or bail, which is assigned for error. The return of the sheriff not being controverted, as might have been done under art. 11, of habeas corpus act, it showed sufficient authority to hold the prisoner in custody.
The indictment was then read and the testimony of the witnesses taken. During the trial several questions as to admissibility and competency of testimony were made to the effect that the declarations and statements of David Roach, the actual perpetrator of the homicide, were not admissible in evidence against the relator, because there had not been proof made that the relator had conspired and confederated with Roach to kill the deceased.
It is well settled law that before the acts and declarations of one party can be received in evidence against the other, there must be proof of a conspiracy, aliunde. The words themselves do not prove the confederacy or tend to prove it; and, therefore, such declarations are mere hearsay. But it is quite as well settled by authority that a conspiracy, may be proved, like other controverted facts, by the acts of parties or by circumstances as well as their agreement.”
In this case the declarations objected to were made in the presence and hearing of the relator — some of them addressed to him — and are, therefore, relieved of the objection made by the counsel, and were competent on other grounds, altogether, as tending, with other things, to make out the conspiracy.
That the judgment which we render in this case maybe the better understood, we will attempt to state the principles of the law of bail as at common law, in England and the United States, and as modified by our constitution and statutes. By the early English common law, bail seems to have been a matter of discretion, with all judicial magistrates and courts before whom offenders might be brought. By the ancient statute of Westminster — 1 C. 13, especially— the power to bail, as to the inferior courts and magistrates, was regulated and restricted; but the court of king’s bench [19]*19and its judges were left unaffected by this statute, in possession of full common law jurisdiction. The celebrated habeas corpus act of Charles II, conferred the power to bail on the judges of the superior courts of Westminister Hall, and other superior judges. In those states of the Union which have derived their jurisprudence from the English source, this common law jurisdiction has been held to pertain to the superior courts, and has been very generally delegated by statute to the judges of the higher courts. The primary object of the great writ of habeas corpus was to deliver persons restrained of their liberty without any or sufficient legal cause and authority; therefore, the respondent to the writ was required, in the fullest manner, to return the caption, its date and the cause or authority of the detention, and the court, or judge, according to the circumstances of the case, either discharged, bailed, or remanded.
The court of king’s bench and the judges authorized to hear and determine a case on habeas corpus have, according to the principles of the common law, the power and discretion to bail all persons whatsoever, and for all offenses whatsoever, without regard to the degree of the crime, or the nature of the punishment. Their power to bail in a capital case was as unquestioned as when the punishment did not reach to the life of the accused. The power and the discretion being thus co-extensive, and their exercise discretionary, it is important to look to the practice and the principles on which the courts and judges proceeded. The rule as laid down by Hawkins, B. 2, chap. 15, § § 20 and 80, is, “ that persons convicted of felony, or who have confessed their guilt, or are notoriously guilty of treason or manslaughter, by their own confession or otherwise, are not to be admitted to bail without some special motive to induce the court to grant it, for bail is only proper where it stands indifferent whether the party is guilty or innocent of the accusation against him, as it often does before the trial; but when that indifference is removed it would be absurd to bail.”
In Rex vs. Wyer, 2 S. & R., 77, the application to bail was [20]*20on the ground that the offense imputed was not a felony, but. the court being of the opinion that it was a felony, bail was refused. So in Rex vs. Marks, 3 East, 163, it appearing from the depositions taken before the coroner’s jury that the-crime charged was felony, the prisoner was remanded.
The court refuses to receive extrinsic evidence, confining, itself to the return, and the depositions before the committing magistrate or the coroner. If the return be legally sufficient, the court cannot try the fact on affidavit, nor can the return be pleaded to, nor can an issue be made upon it. 1 Bacon Abr. title, Bail, 589; 4 S. R., 757; 4 Burr., 2530; 1 Chitt. Crim. Law; 1 Hawk. P. C., chap. 15.
In Tayloe’s case — 5 Cowen — the relator was under indictment for manslaughter, which was not a capital felony. The supreme court of New York had the same discretionary power to bail as the king’s bench in England. The three judges delivered their opinions, seriatim, and the subject of bail as to the power, the right, and the practice, was very thoroughly. considered on the authorities. The conclusion reached ivas, that in felonies, bail would not be granted before indictment, unless in special circumstances; among others, the probable innocence of the accused, and such was stated to be the practice from a review of the decisions and accredited text writers. After indictment the accused ought not to be bailed. The finding of the grand jury is taken as furnishing a strong presumption or probability of guilt. Other considerations will influence the discretion of the court, as when the prosecution has been unreasonably delayed, or the life of the person is endangered by some distemper or sickness threatening life, has been induced by the confinement. 1 Bacon, Abr., 589.
The right to bail, as it stood at common law, was considered by our predecessors in the case of ex parte Dyson, 25 Miss. Rep., 359. In the very sound and judicious opinion of the Court — after stating that the constitutional provision, art. 1, sec. 17, only applied to bail before conviction, and that after conviction the right of the prisoner remained as at [21]*21common law, whilst declaring the power as plenary, it added: Whilst the power is admitted, it should be exercised with great caution, and only when the peculiar circumstances of the case render it right and proper.” “ The court is governed entirely by a sound judicial discretion.” “There must be some special motive to induce the court to grant bail.” Dyson had been convicted of a felony not capital, and his case was pending in the high court awaiting a re-argument. Under the habeas corpus act of Charles II, the judges would not look into testimony, aliunde, but regarded the finding of the grand jury as conclusive upon them.
The writ of habeas corpus is in nature of a writ of error, to examine into the legality of the imprisonment, and, therefore, it commands the caption and cause of detention to be returned. If the relator was in custody by commitment of a justice of the peace or other inferior magistrate, the custom was to send with the writ a certiorm'i to send up the depositions on which the commitment was predicated. If there was no pretence of imputing to the prisoner an indictable offense he will be discharged. But it is more usual to bail or remand according to the nature of the charge. 1 Chit. Crim. Law, 111-128.
As already stated, the king’s bench, and its judges, have power to bail for any offense whatever before or after conviction. But this is not a wild, irresponsible discretion, left to the caprice or individual judgment of each judge; but a legal discretion, regulated by the rules and practice as contained and expounded in the adjudged cases. 1 Chit. Cr. L., 128. As said by Ch. Justice Marshall: “ regulated according to the usages of law.”
In the case of Bennoit, 1 Martin La. Rep., 142, the prisoner had been indicted for an assault Avith intent to kill and murder — then a capital offense. In response to a motion to let to bail, the court said :
“ Bail is never allowed in offenses punishable with death, where the proof is evident, and the presumption great.*’
On a coroner’s inquest finding a party guilty of murdej-, [22]*22the judges have often looked into the testimony which the coroner is bound to record, and .when they have been of opinion that the jury have drawn an illogical conclusion, admitted the 'party to bail. “ But the judges can not help considering the finding of the grand jury as too great a presumption of’ the defendant’s guilt to bail him.”
In Burr’s case (by Robinson 1, 301-308), after indictment, application was made for bail. Marshall, O. J., after considerable discussion, said : “ The act of congress, in express terms, enabled the court to bail a person arx-ested for tx’eason. There was no distinction between treason and other criminal cases, as to the power to bail upon arrests; but an arrest might be after the finding of a grand jury, in which case the finding of the graixd jury would be the evidence on which the court would have to judge whether the party arrested ought to be bailed. They were to exercise their discretion according to the nature and circumstances of the offense, and of the evidence, and usages of the law. The usages of law were to be found in the common law and the practice of the courts.” But he “ doubted extremely whether the court had the right to bail after indictment for treason.” Mr. Burr and Luther Martin asked for time to search for precedents. No authorities were produced by them, and bail was denied.
In McLeod’s case, 25 Wend Rep., the prisoner was indicted for murder; bail was refused; the court declined to receive proof of an allibi by the relator-, at the time of the murder.
Ch. Jus. Raymond, in Rex vs Dalton, 2 Str., 911, thought the indictment conclusive.
State vs. Miller, 2 Dev. N. C., 421, Ruffin, J., said: “ After indictment found a defendant is presumed guiltly for most, if not all purposes, except that of a fair and impartial trial before a jury. This presumption is so strong, that in a capital felony the party can not be let to bail.”
Higbt v. United States, 1 Morris’ (Iowa) Rep., 407, commenting on the effect of an indictment, under a statute forbidding bail, in a capital case, “ where the presumption is great, or the proof evident,” the court said: “An indictment [23]*23furnishes no presumption, when upon trial, but so far as regards all intermediate proceedings between the indictment and trial, it furnishes the very strongest possible presumption of guilt. The finding of the grand jury is conclusive so far as to control proceedings up to the time of trial. The humanity of Our law requires, before a person shall be punished as a criminal, he must be found guilty by two independent juries. The verdict of the first raises a full presumption of guilt up to the time of trial before the second.”
We will now examine the modifications made by positive law in this State :
The 10th art. of habeas corpus act, Code, 366, directs-the judges to proceed to inquire into the cause of imprisonment or detention, and may either discharge, bail, or remand, as the law and the evidence may require.
The return shall not be conclusive as to facts therein stated, but evidence may be received to contradict the same.
The return in this case is, that the prisoner is held to answer an indictment for murder. We have seen that, at the common law, on such returns made to the court of king’s bench, or to an American court of superior common law jurisdiction, although their right to bail, in any case, and for any offense, without regard to the degree of the crime, or the severity of the punishment, was plenary. Yet the “usages of the law” had so shaped and regulated the discretion of the courts that, generally, bail was denied after indictment for a felony, unless some special motive was shown, though the felony was not capitally punished; and that in capital cases, the motive or reason for bail must arise in point of time after indictment, such as the delay by the prosecution to bring on the trial, the danger to the life of the accused, occasioned by the imprisonment, etc., etc.
At common law, the return of the sheriff on the writ, would not be disputed, and the court looked to that to judge of the rightfulness of the detention.
By the 11th art. of our act, the return may be disputed by evidence. Again, the judge, before whom the prisoner is [24]*24brought, shall immediately proceed and dispose'of the case according to the law and the evidence ; and may summon witnesses, etc., etc.
The writ “ extends to all cases of illegal confinement or. detention whatever.” Its primary object is to deliver from “ illegal confinement.” Where the return shows, as in this case, that the prisoner was arrested by a bench warrant, which commanded the sheriff to “ take and safely keep the relator,” to answer an indictment for murder, the “ detention” was perfectly legal. Where the prisoner is in confinement, charged by indictment with a capital felony, his petition for the writ, instead of stating, as in this case, that his imprisonment is illegal and without warrant of law, ought to claim that he is entitled to be enlarged on bail, under the section in the bill of rights; for no one would pretend that the judge can discharge, even on the clearest proof of innocence.
The practice of the courts and judges, under the habeas corpus act of Charles II, and of the American courts and .judges, where the common law was not modified, was to remand to custody, where the return showed that the prisoner was under indictment for a capital crime, and they would not hear affidavits or witnesses in exculpation.
The 8th section of the bill of rights introduces a material modification. It makes bailable all crimes (which the common law did not, as a matter of right), a except capital offenses where the proof is evident, or the presumption great.”
In Davis’ case, 6 How., Miss Rep., 403, it was remarked by the court: “ It is believed that the clause of the constitution was intended by its framers for the better security of the citizen against an improper exercise of discretion with which the common law clothed the judges, and to take from them all discretion whatever, before conviction — only when it becomes necessary to discriminate between capital and minor offenses ” — “ leaving the discretion after conviction, as at common law.”
Under the bill of rights, bail before conviction is a matter [25]*25of right (and not of discretion) for all offenses, except those that are capital, “ Avhere the proof is evident, or presumption great.”
Perhaps the original of the section in our bill of rights, and in the constitutions of nearly all the states, is a clause in the ordinance of 1787 for the government of the territory northwest of the river Ohio. This ordinance was mainly prepared by Mr. Jefferson, it is said. The word? of the ordinance are: “ All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great.” As that territory was formed into States, this provision in the ordnance was, in terms or with slight modifications, incorporated into their constitutions — and for many years has held a place in the constitutions or statutes of nearly all the states. In 1845, the supreme court of Iowa passed on the effect of the ordinance, which had been incorporated into their constitution. It was contended in the case of Hight (1 Morris Rep., 407) — who was under indictment for murder — that “ liberty be given him to prove and satisfy the court that the charge in the indictment was not based ‘upon proof that was evident and presumption great,’ and therefore, he should be let to bail.” For the state it was contended that “ the indictment furnishes such proof or presumption, and that evidence behind the indictment ought not to be received.” It was held by the court that the indictment was conclusive, that no evidence ought to be received — and the application was overruled. The chief justice said: “This is no new provision, but is in express terms incorporated into the constitution of at least half the states, and is the rule of action in all the rest. If the construction contended for be correct, it is a little remarkable that no case can be found where a similar application has been successfully made.”
The bill of rights, and the statute of our state, are not broader or more liberal than in the other states. The right continues until conviction.
Until the decision in Wray’s case, 30 Miss. Rep., 681, the [26]*26practice in this state is believed not to have been uniform. In some of the circuits the judges held the indictment for a capital felony as raisng conclusively the “ presumption great,” and declined to examine witnesses.
Since Wray’s case, the practice has become uniform, and evidence, aliunde, the indictment is received, and this has been considered as settled. On the hearing of the habeas corpus is the indictment placed entirely out of consideration ? If so, it becomes a question of guilty, or not guilty, on the evidence. Yet it is quite certain that is not the issue— for it were absurd to say that the judge could discharge, however clear the proof of innocence might be. Nor is it in any sense a review or revisal of the grounds of the action of the grand jury, for the judge cannot revise their finding, or put the party on final trial for a less grade of crime.
On the hearing in this case the issue submitted to the judge was — “Is the presumption great, or the proof evident that the prisoner is guilty of a capital crime ? ” The indictment and the testimony were all to be considered, in forming a judgment.
When closely reflected on, very serious embarrassments attend the decision of a case, brought from the judgment of the circuit judge, where the case turns mainly on the testimony. We feel it sensibly in this case. Nearly every case that we have examined in the English and American books (except those in this state,) were original applications for bail. In nearly all of them where the point was referred to at all, the judges declined to go into an analysis of the evidence, to determine as to guilt or innocence. That, say they, “ is the province of the jury.”
Any discussion we might make, or any opinion we might come to on the subject might have an injurious effect on the jury trial.
“ So much depends on the manner of witnesses, their seeming bias or fairness, that cannot be brought before this court, ” “ which should yet have a material bearing on the weight of evidence,” that we would pause long before we [27]*27would disturb tbe decisions of the circuit judge where the weight of the evidence depended on the credibility of witnesses — for he had far, very far, better means of detecting the false, biased, prevaricating witness, than this court— means indeed, which by the secondary channel of a bill of exceptions can not be brought before this court.
We are exercising over this writ of error a purely revisory, correctional jurisdiction. We have no largér jurisdiction, or discretion to bail — where a case is before us on a writ of error — than the judge, or court, whose judgment is before us. Indeed, there is nothing in the law to warrant us in dealing with such a case, in any sense, exceptional. We must regard this judgment as presumptively right, until error is shown.
It appears in this case that the witnesses were, in important particulars, conflicting, if not contradictory: that necessarily the question of credability arose — and assuming that question as settled in the mind of the judge in one way — there are very strong inculpating facts. Touching these matters, the circuit judge had far better opportunities, and was in more favorable circumstances to come to a safe, reliable and just opinion, than this court.
The grand jury who had the advantage of a personal examination of the witnesses, ex parte to be sure, have charged the party with murder. The circuit judge, with the like examination of such witnesses as were brought before him, has denied bail.
The facts in the record do not raise the question of the degree of the crime — murder or manslaughter. On that subject there can be no doubt. And as manslaughter is included in an indictment for murder — and a conviction of the lesser offense can be sustained under a charge of the greater — there might be great propriety in this court looking at testimony with the view of ascertaining what grade of crime the evidence fixes.
We suppose the main object of allowing a review at all, was to correct the errors of law which might materially pre[28]*28judice the relator, rather than to estimate and criticise the testimony as to its weight and criminating effects. If the circuit judge excludes testimony material to the defense ; if he has clearly mistaken the grade of the felonious homicide to the disadvantage of the prisoner; if he holds a party restrained by arbitrary power, or by private force, or by the sentence or order of a tribunal without jurisdiction; or if he refuses bail on testimony too weak to raise “ great presumption, or evident proof” — -for the correction of such errors as these, the revisory powers of-this court were, in our view, mainly conferred.
What is meant by the words “ proof evident or presumption great?” The judges, as the authorities which we have examined show, were accustomed to look at the depositions before the coroner, or magistrate, to see whether there was probably felony committed by the accused. If he was clearly innocent, they discharged — but if strongly inculpated, they generally refused bail.
After indictment, however, they declined altogether any examination into the corpus delicti, accepting the finding of the indictment as. strong probability of guilt.
Therefore, in Burr’s case, after indictment, bail was denied; therefore, in Bennoit’s case, the supreme oourt of Louisiana, declared that the indictment raised the “ presumption great; ” therefore, in Right’s case, the supreme court of Iowa, attached the same effect to the indictment. It was because the probability of guilt was heightened, by indictment, beyond what it was by the mittimus of a justice of the peace, that bail was denied in Tayloe’s case, 5 Cowen, and McLeod’s case, 25 Wend.
If on the hearing of this case, neither the prosecution nor defense had offered testimony, what would have been the duty of the judge? Bail, or remand? To discharge was absurd and impossible. There can be hardly doubt that this prisoner must be remanded; for the reason that the matter of the reform creates the “ presumption great,” meant by the bill of rights. The return then contained ample authority [29]*29to hold the relator in custody, unless its force were broken— the prima facie case it made, overcome by the testimony.
We are not left entirely to the results of our own reflections on this point. There is much force in the words of the Pennsylvania court, in the case of Commonwealth vs. Keeper of Prison, 1 Ashmead, 234. The Pennsylvania constitution contained precisely the provisions of the section of our bill of rights : “All prisoners shall be bailable unless for capital felonies where the proof is evident, ‘ or the presumption great.’” The judge said: “Assuming murder in the second degree to be a bailable offense, yet the power to discriminate and decide upon the degrees of murder pertain to the jury which tries the offender, and is not properly exercisable by the judge, on the question of admitting to bail. In a given case, where a malicious homicide should be clearly shown, and in which the presumption was reasonably strong to take away life, I should pause before I would undertake 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 case ; but it would seem a safe one to refuse bail in a case of malicious homicide, where the judge zuould sustain a capital conviction pronounced by a jury on evidence of guilt, such as that produced on the application for bail, and to allow bail where the prosecutor’s evidence was of less efficiency. This affords apractical test by which the granting or refusing bail may be readily solved.”
These views are referred to with approbation by the supreme courkof Ohio in case of state vs. Simmons, 19 Ohio Rep., 141; and the court proceeds : “ So with us in Ohio, if the evidence exhibited on the hearing of the application to admit be of so weak a character that it would not sustain a verdict of guilty against a motion for a new trial, the court will feel it their duty, under the constitution, to bail the prisoner.” The article in the Ohio constitution is precisely like ours. In this case there had been a disagreement of the jury on one trial, and that circumstance was an element in [30]*30the case. If the testimony should make the impression on our minds that the petit jury might and ought to convict, on the same testimony, we would not hesitate to declare that the circuit judge did not err in declining to bail.
In Lumm vs. State, 3 Porter (Indiana R.), 393, the application was after an indictment for murder. The relator in his petition admitted the legality of his arrest and detention; but claimed that his offense was less than murder, and bailable. The court on their statutes allowed an examination of witnesses, for the reason that “ the indictment is not conclusive of the grade of the offense; the prisoner may be convicted of murder in the first or in the second degree; or of manslaughter.” (The last two-not capital.) The prosecuting officer very often prefers but one count for murder, when the crime intended to be imputed is murder in the second degree, or manslaughter.
After indictment, on habeas corpus, the only possible inquiry can be as to the grade of the offense, or the strength of the evidence. It is not a question of guilt or innocence absolutely — for there is no power to discharge. But if on the testimony there is no doubt that a murder has been committed (and no point can, therefore, arise as to the grade), but the issue is as to the guilty complicity of the relator with the perpetrator — and that issue depends in a great degree on the credibility of witnesses, it would be going very far in the appellate court to reverse the judgment of the court, who saw, heard, and observed the witnesses. That, as it seems to us, is the case made by this record of the facts.
The case of Wray, in 30 Miss. Rep., 142, and Beall’s case, 39 Miss. Rep., 720, the court deemed it “ proper to withhold the grounds of its opinion, as the cases were to undergo a jury trial, whose province it was to determine the guilt or innocence of the accused.” In these cases the only question that could arise, was as to the grade of the homicide, or its sufficiency to criminate at all — and we are left to inference as to the opinion of the court on the point. Appreciating the delicacy of arguing on the testimony in advance of the [31]*31jury trial, as to its criminating or exculpatory effect, we have only attempted to deduce from the practice and precedents of the courts, the principles of law on this subject, which have conducted us to the conclusion that, in the circumstances of this case, we ought to affirm the judgment of the circuit judge. Judgment Affirmed.
Note. — The Reporter learns by a note from one of the learned counsel for Streetj that he has beon finally acquitted of this charge by a jury of Yazoo county.