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Subject Area: Law
Topic: The American Revolution and Constitution

§ 32.: Preliminary confinement to answer for a crime—Commitment of witnesses.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 32.

Preliminary confinement to answer for a crime—Commitment of witnesses.—

It is the benign principle of every system of jurisprudence that one is presumed to be innocent of all criminal accusations, until he is proven to be guilty, and that presumption is so strong that the burden is thrown upon the prosecution of proving the guilt beyond the shadow of a doubt, in order to secure a conviction. But, notwithstanding this general presumption of innocence, the successful prosecution and punishment of crimes require that the necessary precautions be taken to secure the presence of the accused during the trial and afterwards, in case of conviction, and the fear of a default in attendance becomes greater in porportion as the likelihood of conviction increases. In order, therefore, that the laws may be enforced, and the guilty be brought to trial and punishment, it is necessary that every one, against whom a charge of crime has been laid, should submit to arrest by the proper officer, whose duty it is to bring the accused before the court or officer by whom the order for arrest has been issued.

Another phase of preliminary confinement, which is permitted in the furtherance of justice, is the commitment of witnesses in criminal cases. When a witness is summoned in a criminal case, whether to appear before the grand jury, or in the actual trial of the case, and he refuses to testify, he may be committed to jail for contempt, unless he is exempted by privilege from the obligation to testify.2 So, also, where it is feared that a witness is likely to disappear before the trial, in order to escape his appearance on the witness stand, he may be required to enter into recognizance and give bond for his appearance; and if he refuses or is unable to do so, he may be committed to jail. There is no unconstitutional interference with personal liberty in such a commitment.1

Since the preliminary confinement is ordered only to insure the attendance of the accused at the trial, the confinement can only be continued as long as there is any reasonable danger of his default. Where, therefore, the punishment upon conviction will not exceed a fine or imprisonment of short duration, it became customary at an early day to release him upon giving a bond for his appearance, signed by sureties, in the sum which he will have to pay upon conviction, or in such a sum as would probably be sufficient to outweigh the impulse to flee from the threatened imprisonment. This was called giving bail. At common law, bail could not be demanded as a matter of right, except in cases of misdemeanor, and felonies were not bailable as a rule. But the severity of the common law in this regard has been greatly moderated, until at the present day, as a general rule, all offenses are bailable as a matter of course, except in cases of homicide and other capital cases. In all capital cases, it is usually provided that bail should be refused, where the evidence of guilt is strong or the presumption great, and in all such cases it is left to the discretion of the judge to whom application is made, whether bail should be granted or refused.2 When a person is bailed, he is released from the custody of the State authorities, but he is not remanded completely to his liberty. The one who has furnished the security, and is therefore responsible for his default, has in theory the custody of the accused in the place of the State, and he has in fact so much of a control over the accused, that he may re-arrest the latter, whenever he wishes to terminate his responsibility, and deliver the principal to the officers of the law. But the imprisonment by the bail can only be temporary and for the purpose of returning him to the custody of the law, and must be done with as little violence as possible. This can be done at any time before the forfeiture of the bond for non-appearance has been judicially declared; it may be done by the bail or by his duly constituted agent, and the arrest can be made wherever the accused can be found, even though it is without the State.1

Another instance, where bail is permitted to be allowed, in the discretion of the judge, is after conviction for a crime, which is not punishable by death, pending an appeal. But the circumstances, and conditions, under which bail will be allowable in such a case, are wholly within the control and discretion of the legislature; and the statute, regulating the same, cannot be successfully attacked, on the ground of unconstitutionality, because the statute permits bail only when there is a stay of proceedings, and a certificate is procured from a judge that there is reasonable doubt, whether the judgment should stand.2

In Pennsylvania, a statute requires bail absolute to be given for a debt and costs, where, in a suit before a magistrate for the recovery of wages for manual labor, an appeal is taken from the judgment in favor of the plaintiff. The act was held to be free from constitutional objections.3

The constitutions of most of the States, as well as the constitution of the United States, provide that excessive bail shall not be required. What constitutes excessive bail, must from the necessities of the case be left with the discretion of the judge or magistrate, to whom application for release on bail is made. Any misjudgment in such a case, or a willful requirement of excessive bail, could not be remedied, except by application to some other court or judge possessing jurisdiction over the case. That bail may be called reasonable, which will be sufficient to secure the attendance of the accused at the trial by outweighing or overcoming the inducement to avoid punishment by a default; and the court or judge, in determining the amount of the bail, must take into consideration all the circumstances which will increase or diminish the probability of a default, the nature of the offense, and of the punishment, the strength or weakness of the evidence, the wealth or impecuniosity of the accused, etc.

SECTION33.What constitutes a lawful arrest.
34.Arrests without a warrant.

[2]In re Clark, 65 Conn. 17.

[1]In re Petrie, 1 Kan. App. 184 (40 P. 118).

[2]United States v. Hamilton, 3 Dall. 17; State v. Rockafellow, 6 N. J. 332; Com. v. Semmes, 11 Leigh, 665; State v. Summons, 19 Ohio, 139; Allery v. Com., 8 B. Mon. 3; Moore v. State, 36 Miss. 137; Foley v. People, 1 Ill. 31; Shore v. State, 6 Mo. 640; People v. Smith, 1 Cal. 9.

[1]See Commonwealth v. Brickett, 8 Pick. 138; Parker v. Bidwell, 3 Conn. 84; Reed v. Case, 4 Conn. 166 (10 Am. Dec. 110); Niccolls v. Ingersoll, 7 Johns. 145; Harp v. Osgood, 2 Hill, 216.

[2]McKane v. Durston, 153 U. S. 684.

[3]Foster v. Strayer (Com. Pl.), 6 Pa. Dist. Rep. 333; 27 Pittsb. Leg. J. (n. s.) 390.