This is an original application for a writ of habeas corpus made to obtain bail.
Upon a complaint charging the petitioner with having murdered one Thomas K. Marshall, the petitioner was on May 27, 1931, by the Honorable EDWIN F. *Page 425 JONES, Justice of the Peace of Tucson precinct, Pima county, acting as a committing magistrate, given a preliminary hearing and bound over to the superior court of Pima county to answer said charge, the magistrate admitting her to bail in the sum of $20,000. On May 28th a bail bond, with two sureties, conditioned as provided by statute, was presented to the magistrate and by him approved. On the same day the county attorney of Pima county filed an information in the superior court of said county against the petitioner charging her with the crime of murder. Subsequent to filing the information, but on the same day, the county attorney filed a motion for an order to cancel the bail bond and to remand defendant to the custody of the sheriff. June 2d the petitioner was arraigned and entered a plea of not guilty. On that day the Honorable FRED W. FICKETT, Judge of the superior court of Pima county, feeling, as we understand it, that the bail was insufficient because the wives of the sureties had not signed, ordered petitioner to make and execute a new bond in the sum of $20,000. Such new bond with sureties was on that day duly approved by said judge and filed.
On the 3d of June, against the protest of the petitioner that the court had no jurisdiction to cancel the bond and re-incarcerate her, because the order of the committing magistrate committing the defendant was res judicata, and because the motion did not state facts sufficient to warrant the canceling of said bond and the remanding of petitioner to the custody of the sheriff, the judge of the superior court aforesaid proceeded to take evidence in support of the motion. The evidence so heard and introduced consisted of the transcript of the testimony taken before the Honorable EDWIN F. JONES, Justice of the Peace of Tucson precinct, upon the preliminary hearing, and at the conclusion thereof, with no other evidence, the *Page 426 trial court made an order canceling, revoking and annulling petitioner's bail bond and directing the issuance of a bench warrant "remanding defendant to the custody of the sheriff." The sheriff's return shows that he has the petitioner in his custody under and by virtue of a bench warrant issued out of the superior court of Pima county on June 3, 1931.
The petitioner claims that the order of the committing magistrate, made at the preliminary hearing, granting bail, wasres judicata as to the state, and that the order of the judge of the superior court, made subsequent to the filing of the information, directing that she be imprisoned pending the trial, was without authority of law and void. She also claims that the transcript of the testimony taken at the preliminary trial and considered by the said judge of the superior court upon the motion to cancel bond and recommit fails to show that the proof was evident or the presumption great, and that therefore she was entitled to bail.
Succinctly, the question is: Can the superior court, or the judge thereof, under the law of this state after an information has been filed against a party bound over to that court and left at large on bail, examine the testimony taken at the preliminary hearing, set aside the committing magistrate's conclusion on the right to bail, and thereupon order the accused committed to jail without bond.
Before trying to answer this question, we state that the settled rule in this jurisdiction, by the Constitution, the statutes and the decisions, is that all persons accused of crime are before conviction as a matter of right entitled to have their liberty on furnishing good and sufficient bail, except in capital cases where the proof is evident or the presumption great.Matter of Application of Haigler, 15 Ariz. 150, 137 P. 423. The charge in this case is capital, since *Page 427 the punishment for murder may be death. Under our criminal laws one may not be charged by information with the commission of a felony until after he is given a preliminary hearing before one of the following officers, to wit: A judge of the Supreme or a superior court, or a justice of the peace, or a police judge of an incorporated city or town acting as a magistrate. Section 4927, Rev. Code 1928. It is said that the purpose of a preliminary hearing is threefold:
"(1) To inquire concerning the commission of crime and the connection of accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if there is probable cause for believing him guilty, that the state may take the necessary steps to bring him to trial; (2) to preserve the evidence and keep the witnesses within the control of the state; and (3) to determine the amount of bail." 16 C.J. 313, § 556.
While the magistrate's powers are judicial in their nature, the preliminary hearing is not a trial. Such hearing is only had in cases over which the magistrate has no jurisdiction. The defendant is not put in jeopardy. If he is discharged by one committing magistrate, he may be re-arrested and his case re-examined by the same or another magistrate. If he is held over upon a preliminary hearing, the policy of the law is against his being re-arrested and re-examined for the same offense.
The lawmakers were very careful in prescribing the steps to be taken against one charged with crime, zealous in guarding his personal liberty by providing for the allowance of bail as a matter of course in all cases not capital, and in capital cases where the proof is not evident or the presumption great. When the offense is capital, it is explicit in the law that it is the duty of the committing magistrate in the first place to determine whether the evidence of guilt of the highest offense is of a character justifying the *Page 428 allowance of bail or requiring the accused's committal without bail. If the magistrate decides that the offense is bailable, it is the contention of the petitioner that such decision fixes the status of the offense and herself as to the right to bail throughout, until conviction, whatever the facts may be. This contention is based upon section 5000 of the Revised Code, which provides that, if a defendant, who has been admitted to bail before indictment or information, fails to give bail in an increased amount when ordered by the court, he may be committed to custody, and section 5172, which provides that he may be committed to custody by the court in the following cases: (1) When he has forfeited his bail; (2) when the bail becomes insufficient by reason of the death of a surety or sureties, or their removal from the state; or (3) "upon an indictment or information being found for felony, and the defendant is on insufficient bail, in which case the order [for his rearrest] shall specify the increased amount."
It is said these provisions of the statute clearly indicate the legislative intent to limit the power of the court to which a defendant is bound over to the duty of seeing that the bail is kept sufficient by increasing it in amount and in seeing that the sureties are responsible and adequate.
There is in the law no express provision giving the superior court, or the judge thereof, the power or right to commit a defendant without bail after indictment or information when he has been held over by the committing magistrate on bail. If the court, or judge, may disregard the order of the committing magistrate allowing bail and commit the defendant to custody, the law is silent as to the circumstances under which such power may be exercised. Can the judge, as he did in this case, act upon the identical evidence the committing magistrate did and substitute *Page 429 his judgment, as to whether the offense is bailable, for the judgment of the magistrate, and commit the defendant to the custody of the sheriff when the magistrate had accepted bail, or must he take additional evidence, or may he on his own motion, and without evidence, arbitrarily order the defendant committed to the sheriff's custody? If the superior court, or judge thereof, may overturn the order of the committing magistrate allowing bail in a capital case when the latter is a justice of the peace, he may do so in a case wherein the chief justice or one of the judges of the Supreme Court or where he or any other superior court judge may have held the preliminary hearing and admitted the accused to bail. The law does not seem to have provided the superior court or a judge thereof with power to overturn the magistrate's action in allowing bail.
It has, however, vested the court or judge with power, upon an application for a writ of habeas corpus, to grant bail in capital cases where the proof is not evident or the presumption great, notwithstanding the magistrate may have denied bail. In other words, upon an application before the Supreme Court or a superior court or any judge of such courts showing that he is imprisoned or detained in custody on any criminal charge for want of bail, a person is entitled to a writ of habeas corpus for the purpose of giving bail. Sections 5250 and 5262, Rev. Code 1928. In such a case it is made the imperative duty of the court or judge when the petition is presented to grant the writ, thereafter hear the evidence on the question of bail, and in a summary manner dispose of the petitioner as justice may require. Section 5257, Id.
Bail accepted by the committing magistrate is continuing. Appearance in court to which it is returnable does not satisfy or discharge its conditions. If the defendant fails to hold himself amenable to the *Page 430 orders and processes of the court, his bail may be forfeited. If the sureties die or leave the state, and he fails to supply other sureties, he may be committed to the custody of the law, or, if the court becomes convinced that the amount of the bail is inadequate, it may increase the amount, and for a failure by the defendant to file a sufficient bond he may be committed. The rule is the same whatever the grade of the offense, capital or noncapital, those in which the right to bail is absolute, and those in which the magistrate may or may not allow bail. When bail is allowed by the committing magistrate, the power of the trial court over it thereafter is limited to seeing that it is obeyed as originally given or as amended under its direction.
If the legislature had felt that in capital cases the trial court should have the right to override or ignore the magistrate's order admitting the accused to bail, it would have been an easy matter to have said so. The Constitution and laws provide when and by whom bail may be allowed, and the courts must be governed accordingly. If the law was entirely silent as to the allowance of bail, we might resort to the court's power in that regard under the common law. The law has affirmatively spoken and said what the trial court may do with reference to bail allowed by the committing magistrate. This we think, under the circumstances, is a denial to that court of the power to do anything else.
The only case we have found or to which our attention has been called in the briefs that seems to hold the contrary view is Exparte Cook, 35 Cal. 107. The facts in the Cook case were that he went before a committing magistrate, waived examination, and was committed. Thereafter, upon writ of habeas corpus, he was admitted to bail by the county judge. After he was indicted, upon the motion of the district *Page 431 attorney, the court issued a bench warrant for his arrest and committed him to the custody of the sheriff. It was contended that the court in issuing the warrant exceeded its jurisdiction. While our statutes and those of California with reference to bail are similar, it is evident that the California statutes in 1868, when the Cook decision was rendered, in vital respects were not the same as ours. For instance, it is said in that case that, if the indictment is against a defendant not in custody, but out on bail, and the indictment is for a felony, the court may nevertheless order him into custody if he be present, and, if not, may issue a bench warrant for his arrest. We have no such provision in our law. Under our statutes, the only cases in which the courts may issue a bench warrant for the arrest of the defendant are those heretofore mentioned and those where the defendant has been discharged on bail and has failed to appear to be arraigned when his personal attendance is necessary, and those cases where an indictment or information has been filed against a defendant not in custody and who has not been held to answer. Section 4995, Id. In the Cook case the court, while stating that "the statute is not, perhaps, as clear upon this question as it might be," held that, in view of the statute above referred to and other provisions, if the trial court in its judgment believed the case to be one in which bail ought not to be taken, it might order the defendant into custody, notwithstanding any bail which may have been given before the indictment was found.
If the court in the Cook case correctly states the statute law of that state, it is materially different from ours. We have no statute authorizing the court after indictment to order into custody a defendant out on bail, if he be present, and, if not, to issue a bench warrant for his arrest, as the law is stated to *Page 432 be in that jurisdiction. Our section 5000, supra, does provide that, after an indictment or information is found, if the defendant be on bail, he may be committed to custody, "unless he give bail in an increased amount, to be specified in the order." If the defendant is present, this section says, when the order is made he must be forthwith committed; if not present, a bench warrant must be issued for his arrest. This last expression, of course, is conditioned upon his failure to give bail in an increased amount as specified in the order. It will be noticed that the California court expresses doubt of the proper construction of its statute. Our statute seems to be plain. The question as to whether the decision of a committing magistrate as to the right of a party to give bail is res judicata has not been decided in California. That feature of the question was not touched upon or called to the court's attention in the Cook case.
In 3 California Jurisprudence (publication of 1921), 1043, section 15, the authors make this statement:
"Whether an order admitting a prisoner to bail is resjudicata and final as to the state and accused, except as to the amount, does not appear to have been definitely passed upon in this state. In other jurisdictions it has been held that after the right to bail has once been passed upon in favor of the accused, such question cannot be reopened to permit the prosecution to introduce evidence in rebuttal of that offered by the applicant."
See, also, 3 Ruling Case Law, 31, § 35.
The allowance of bail is a judicial act. It was within the lawful powers of the committing magistrate to grant the defendant her liberty on bail pending the determination of the question of her guilt or innocence. We do not know, and nobody knows, what a jury of twelve of her fellow-citizens may say. It may be determined ultimately that the magistrate was in error, but it cannot be said that he acted outside *Page 433 of the powers conferred upon him by the laws of the state when he admitted defendant to bail. There is a line of decisions holding that, when a court having jurisdiction enters a solemn judgment and order adjudicating and finding that a defendant is entitled to bail, such judgment and finding is binding and conclusive andres judicata on that question. State v. Newman,114 Okla. 228, 245 P. 999. Whether this rule, as it is broadly stated, should be applied to the decision of a committing magistrate allowing bail in a capital case may be doubted, but we think that, in view of our statutes on the subject, it must have been so intended.
The legislature in effect has provided that, if the committing magistrate allows bail in a capital case, the state is bound thereby, whereas if he denies bail the accused may apply for a writ of habeas corpus for the purpose of obtaining bail. At first blush this would seem to be unfair to the state. One is inclined to think that, if the accused is given the right to question the order denying bail, the state should be extended the right to question the order granting bail. This, however, is a legislative matter and not one for the courts. Besides, the rule accords with the treatment extended accused persons generally. The law is that, if the defendant is poor and unable to hire counsel, the state will furnish him counsel for his defense; it will also secure for him his witnesses at the state's expense. If he is convicted, he may appeal, but, if he is acquitted of the charge against him, however clear the evidence may have been that he was guilty, the state may not appeal. Defendant may refuse to testify and the state's attorney is prohibited to comment thereon, but, if the prosecuting witness should fail to testify, the accused may comment thereon. So it is not unusual for the state to *Page 434 extend favors to a defendant and deny them to the prosecution.
We have come to the conclusion that the trial court exceeded its jurisdiction when it ordered that the defendant be re-arrested and committed to the custody of the sheriff. We think the defendant was entitled to be continued at large upon the bail allowed by the magistrate, or upon the amended bail accepted and approved by the judge of the superior court, and that the court's order attempting to cancel the bail was void and of no effect.
We do not go into the question of the sufficiency of the evidence to show whether the proof was evident or presumption great, for the reason that the question was passed upon by the committing magistrate, whose decision allowing bail is final as to this court, as also the trial court.
We hold that the finding of the committing magistrate that the defendant was entitled to bail was within the magistrate's jurisdiction, and that the bail fixed and accepted by him, or the bail with the same and additional sureties substituted therefor and accepted and approved by the trial judge, is still in force and effect, and that the defendant is entitled to her liberty thereunder. If the trial court thinks the bond is insufficient in amount to secure the presence of the defendant at the trial, or that the sureties are not responsible, it has the power to increase the amount and to require new sureties.
It is our opinion that the defendant is unlawfully held in custody and that she should be discharged under the bail allowed by the magistrate or the amendment thereof accepted and approved by the trial judge.
It is accordingly ordered that the sheriff of Pima county discharge defendant from custody upon the bail heretofore given. *Page 435