I regret to say that I cannot concur with the majority opinion of the court in this case, as it seems to me to be ill-founded, both on authority and principle. That opinion, stated in a few words, is that the action of a committing magistrate, denying or granting bail on a murder charge, is res adjudicata when in favor of the defendant, but not when it is against him. I discuss first the authorities. *Page 438
It is a well-known fact that our Penal Code was in most part taken from that of the state of California, and the decisions of that state on such provisions of its Code as are similar to ours are extremely persuasive, if not binding on us. In the case ofEx parte Cook, 35 Cal. 107, decided in April, 1868, the facts were very similar to those of the case at bar. The petitioner in that case surrendered himself to the custody of the sheriff to answer to a charge of murder. Thereupon the sheriff took him before a justice of the peace, where he waived preliminary examination, and was committed, but was admitted to bail thereafter by the county judge in the sum of $8,000, which he gave, and was discharged from custody. At the next term of the county court an indictment was presented against him for murder, and thereupon on motion of the district attorney a bench warrant was issued for his arrest under which the sheriff arrested him and held him in custody without bail, and the matter was brought before the Supreme Court of California on an original writ issued in a habeas corpus proceeding. The petitioner claimed a discharge on two grounds: (1) Because the county court exceeded its jurisdiction; and (2) because the court issued the bench warrant in a case not allowed by law.
It will be seen that the circumstances in that case are almost identical with those in the case at bar. Petitioner herein was arrested on a charge of murder, taken before a justice of the peace for preliminary examination, and committed for trial. She was admitted to bail, which she gave, and was discharged from custody. Thereafter an information was filed against her charging her with murder, and on motion of the county attorney a bench warrant was issued for her arrest, and, after hearing she was, and is now, *Page 439 held in custody without bail. The Supreme Court of California held as follows, in the case cited:
"The statute is not, perhaps, as clear upon this question as it might be made, but enough is said to show that it is not intended to fetter the County Court in the exercise of its jurisdiction over the person of the defendant, after an indictment has beenfound against him, by reason of any proceedings previously had inthe premises. On the contrary, if bail has been taken, it has been taken to secure his appearance at the County Court, and to hold him amenable to its orders and process (Sec. 516), the same as if he were in actual custody. If that Court is of the opinion that the bail already given is sufficient security, it may allow it to stand unchanged, but if not, it has the power to order him to give additional bail or go into custody; and if, in its judgment, it is a case in which bail ought not to be taken, the Court may order him into custody notwithstanding any bail which may have been given before the indictment was found. It would beanomalous to hold that the Court can, as it undoubtedly may,compel the defendant to come into Court by its warrant for thepurpose of giving additional bail or going into custody on abailable offense, and yet cannot compel him to come into Courtand go into custody on a charge which may not be bailable atall." (Italics ours.)
The opinion is explicit as to what is decided, and, if the statutes on which it is avowedly based are similar to ours, is squarely in point.
The majority of this court in its opinion states that, while our general statutes regarding bail are now similar to those of California, those in force in that state in 1868, when the Cook case was decided, were in vital respects different. I am of the opinion to the contrary, after careful examination and comparison of the California statutes, from the Criminal Practice Act of 1851 to the present time, with our Penal Code from 1864 up to and including the Code *Page 440 of 1928, that our statutes on the subject of bail were originally taken from those of California; that they have never changed in substance, and that even in language they have followed the California law almost verbatim until the Revised Code of Arizona of 1928; that the changes in language made then cannot on any reasonable theory be held to have changed the meaning, and that all of the provisions of the California Code on which the Supreme Court of that state expressly based its opinion in the Cook case are found in substance in our present law.
The Cook case cites sections 234, 261-270, and 516 of the Criminal Practice Act as the ones upon which its decision is based. These sections are found in the California statutes of 1851 (pages 237, 240). Sections 234 and 261 of that act read as follows:
"Sec. 234. When an indictment has been found against a defendant not in custody, the same proceedings shall be had as are prescribed in section two hundred and sixty-eight, both inclusive, against a defendant who fails to appear for arraignment."
"Sec. 261. If the defendant has been discharged on bail, or has deposited money instead thereof, and do not appear to be arraigned, when his personal attendance is necessary, the Court in addition to the forfeiture of the recognizance, or of the money deposited, may direct the Clerk to issue a search warrant for his arrest."
Sections 210 and 237 of the Howell Code of Arizona (1864) follow almost verbatim sections 234 and 261, supra, except in so far as it was necessary to substitute on account of the difference between the Territory of Arizona and the state of California. Sections 932 and 960, Penal Code of Arizona of 1913, are in almost identical language. Section 4995, Revised Code of Arizona of 1928, reads as follows:
"Section 4995. Defendant on bail; bench warrant. If the defendant has been discharged on bail, and do *Page 441 not appear to be arraigned when his personal attendance is necessary, the court, in addition to the forfeiture of the recognizance or of the money deposited, may direct the clerk to issue a bench warrant for his arrest. When an indictment or information has been filed against a defendant not in custody and who has not been held to answer, the court shall order a bench warrant to issue for his arrest."
Sections 262-268, inclusive, of the California Practice Act,supra, need not be quoted, as they refer to details having no bearing on this case, but it is sufficient to say that they appear in almost precisely the same forms in the Howell Code, the Penal Code of 1913, and the Revised Code of Arizona of 1928.
Sections 269 and 270 of the Practice Act, supra, read as follows:
"Sec. 269. When the indictment is for a felony, and the defendant before the finding thereof has given bail for his appearance to answer the charge, the Court to which the indictment is presented, may order the defendant to be committed to actual custody, unless he give bail in an increased amount, to be specified in the order."
"Sec. 270. If such order be made and the defendant be present, he shall be forthwith committed accordingly. If he be not present, a bench warrant shall be issued and proceeded upon in the manner provided for in this chapter."
They appear in almost the identical language as sections 245 and 246 of the Howell Code, and as sections 966 and 967 of the Penal Code of 1913. Section 5000, Revised Statutes of Arizona of 1928, reads as follows:
"Section 5000. Increasing amount of bail. When the indictment or information is for felony, and the defendant, before the finding thereof, has given bail for his appearance to answer the charge, the court to which the indictment or information is presented, or in which it is pending, may order the defendant to be committed to custody, unless he give bail in an *Page 442 increased amount, to be specified in the order. If the defendant is present when the order is made he must be forthwith committed. If he is not present, a bench warrant must be issued for his arrest."
Section 516 of the Practice Act reads as follows:
"Sec. 516. Bail is put in by a written recognizance executed by two sufficient sureties (with or without the defendant, in the discretion of the Court or Magistrate), and acknowledged before the Court or Magistrate in substantially the following form: `An order having been made on the ____ day of ____, A.D. 18__, by A.B., a Justice of the Peace of ____ County (or as the case may be), that C.D. held to answer upon a charge of (stating briefly the nature of the offense), upon which he has been duly admitted to bail in the sum of ____ dollars; We, E.F. and G.H. (stating their place of residence), hereby undertake that the above named C.D. shall appear and answer the charge above mentioned in whatever Court it may be prosecuted, and shall at all times hold himself amenable to the orders and process of the Court, and if convicted shall appear for judgment and render himself in execution thereof, or if he fail to perform either of these conditions that he will pay to the people of the State of California, the sum of ____ dollars (inserting the sum in which the defendant is admitted to bail).'"
It also appears almost verbatim as section 492 of the Arizona Howell Code, and as 1195 of the Penal Code of 1913. Section 5161, Revised Code of Arizona of 1928, reads as follows:
"Section 5161. Form of bail bond. Bail for the appearance of the defendant before the magistrate upon the examination of the charge, or on the trial of a charge of misdemeanor, shall be put in by a written undertaking, executed by the defendant and not less than two sureties, and acknowledged before the magistrate in substantially the following form:
"`An order having been made on the ____ day of ____, 19__, by A.B., a justice of the peace of ____ county, (or other officer, as the case may be), that the (trial or examination), of one C.D. upon a charge *Page 443 of (stating briefly the nature of the offense or designating it as a felony or misdemeanor), be held before said justice of the peace on the ____ day of ____, 19__, at ____ o'clock ____ m., and admitting the said C.D. to bail for his appearance at such (examination or trial), in the sum of ____ dollars; we, C.D. as principal, and E.F. and G.H., (stating their places of residence), as sureties, hereby undertake that the said C.D. will appear before said justice of the peace for (examination or trial), at the time above specified, and will at all times hold himself amenable to the orders and process of the court; or, if he fails to perform either of these conditions, that he will pay to the state of Arizona the sum of ____ dollars (inserting the amount of bail).'
"Bail for the appearance of the defendant before the superior court after being held to answer, shall be likewise executed and acknowledged, and in substantially the following form:
"`An order having been made on the ____ day of ____, 19__, by A.B., a justice of the peace of ____ county, that C.D. be held for answer upon the charge of (stating briefly the nature of the offense) upon which he has been admitted to bail in the sum of ____ dollars; we C.D. as principal and E.F. and G.H. (stating their places of residence), as sureties, hereby undertake that C.D. will appear and answer the charge before mentioned, in whatever court it may be prosecuted, and will at all times hold himself amenable to the orders and processes of the court, and, if convicted, will appear for judgment and will render himself to an execution thereof, or, if he fails to perform either of these conditions, that we will pay to the State of Arizona the sum of ____ dollars (inserting the amount of bail).'"
In addition to the sections of the Practice Act quoted in the Cook case, sections 510 and 539 of that act should be considered. They read as follows:
"Sec. 510. No person shall be admitted to bail where he is charged with an offense punishable with death, when the proof is evident or the presumption great." *Page 444
"Sec. 539. The Court to which the committing magistrate shall return the depositions and statement, or in which an indictment or an appeal is pending, or to which a judgment on appeal is remitted to be carried into effect, may, by an order to be entered on its minutes, direct the arrest of the defendant and his commitment to the officer to whose custody he was committed at the time of giving bail, and his detention until legally discharged in the following cases:
"1st. When by reason of his failure to appear he has incurred a forfeiture of his bail or of money deposited instead thereof, as provided in section five hundred and thirty-fifth:
"2d. When it satisfactorily appears to the Court that his bail or either of them are dead or insufficient, or have removed from the State:
"3d. Upon an indictment being found in the cases provided in section two hundred and sixty-ninth."
Section 510 appears in the Howell Code as section 479, and in the Penal Code of 1913 as section 1188, which last is in identical language with section 5158, Revised Statutes of Arizona, 1928, reading as follows:
"Section 5158. Right to Give Bail. A defendant charged with an offense punishable by death, cannot be admitted to bail, where the proof of the guilt is evident or the presumption thereof is great. The finding of an indictment or the filing of an information does not add to the strength of the proof or the presumption to be drawn therefrom. . . ."
Section 539 of the Practice Act, supra, appears as section 508 of the Howell Code, and section 1217 of the Penal Code of 1913.
Section 5172, Revised Statutes of Arizona of 1928, reads as follows:
"Section 5172. Re-arrest and commitment after bail, grounds. The court to which the committing magistrate returns the complaint, or in which the indictment or information or appeal is pending, or in which a judgment on appeal is remitted to be carried into effect, may, by an order entered upon its minutes direct the arrest of the defendant and his commitment *Page 445 to the officer to whose custody he was committed at the time of giving bail, and his detention until legally discharged, in the following cases: When, by reason of his failure to appear, he has incurred a forfeiture of his bail, or of money deposited instead thereof; when it satisfactorily appears to the court that his sureties, or either of them, are dead or insufficient, or have removed from the state; upon an indictment or information being found for felony, and the defendant is on insufficient bail, in which case the order shall specify the increased amount."
In comparing this last section, however, one should read both sections 269 and 539 of the California Practice Act.
The act of 1925 of the Arizona legislature (Laws 1925, chap. 35) providing for the revision of the Arizona statutes instructed the Code Commissioner that he should not "undertake to make any change of existing laws, but shall harmonize where necessary, reduce in language, and remove inconsistencies where the same are found to exist." (Section 3.) We have held in the case of In reSullivan's Estate, ante, p. 387, 300 P. 193, just decided, that we should presume, when the language of the Code of 1928 differs from that of the one of 1913, the meaning remains the same, unless the change is so great that it shows beyond doubt the legislature intended a change in the substance of the law also. On reading the parallel sections above quoted and cited, and, in view of the act of 1925 and the decision above cited, I am at a loss to see how it can be held that the decision in the case of Ex parte Cook, supra, is not based upon statutes that are exactly similar in substance to those of ours at the present time. If we follow the usual rule that, when we take a statute, we take it with the interpretation given it by the state from which it came, Ex parte Cook is binding upon us, and, as was said by the Supreme Court of California in that case, referring to the statute: "It is not intended to fetter *Page 446 the . . . Court in the exercise of its jurisdiction over the person of the defendant, after an indictment has been found against him, by reason of any proceedings previously had in the premises, . . .," and that the court, when bail has been taken to secure the appearance of a defendant to answer before it, "if, in its judgment, it is a case in which bail ought not to be taken, the Court may order him into custody notwithstanding any bail which may have been given before the indictment was found. It would be anomalous to hold that the Court can, as it undoubtedly may, compel the defendant to come into Court by its warrant for the purpose of giving additional bail or going into custody on a bailable offense, and yet cannot compel him to come into Court and go into custody on a charge which may not be bailable at all."
I have examined carefully the authorities cited in the majority opinion and in the brief of petitioner which purport to reach a contrary conclusion. It seems to me that they are not at all in point. The text of 3 Ruling Case Law, paragraph 35, does state as follows:
"An order granting bail is res judicata and final as to the state and even as to the accused except as to the amount, which may be reduced upon appeal or otherwise."
There is but one case in Ruling Case Law, however, referred to as supporting this doctrine, which is that of Ex parteAugustine, 33 Tex. Cr. 1, 47 Am. St. Rep. 17, 23 S.W. 689. The facts in that case were as follows:
The defendant was indicted for murder, and on account of illness was admitted to bail in the sum of $10,000. For some reason the case was dismissed, and later a new indictment was filed for the same offense. The Court of Criminal Appeals of Texas stated: *Page 447
"We deem it necessary to discuss only one of the legal questions presented for decision, to wit, when a person charged with a capital offense has once been admitted to bail afterindictment found, he shall not be subject to be again placed in custody for the same offense, except on surrender by his sureties, whether the bail be granted on the facts, or on account of ill health. In other words, when bail is once granted after indictment found, it is beyond the power of the state to rearrest for that offense; the right to bail being res adjudicata. . . . The state is not entitled to a new trial, and is debarred the right of appeal by the constitution of this state; and there is no way by which the state can vacate a judgment, and retry the accused, of its own right. A judgment granting bail is final, as to the state, and even to the accused, unless he should seek to reduce the amount of bail granted, by appeal or otherwise." (Italics ours.)
In the first place, it will be noted that the point decided is not that an order of the committing magistrate before indictment or information allowing bail is res judicata after an information has been filed, but that, when bail has been allowed after information by the trial court, it may not set aside its own orders. Further, the decision stands on a mereipse dixit, and is not supported by the authorities cited therein. In the case there are cited the one case of Ex parteJilz, 64 Mo. 205, 27 Am. Rep. 218, certain texts, and a Texas statute. On examining the case of Ex parte Jilz, however, it appears the question involved was merely whether, after a defendant has been released on a writ of habeas corpus, he can again be arrested, and held without bail on the same state of facts, and it appears that in Missouri the state may not appeal from a judgment in favor of the defendant in habeas corpus. The case is not authority for the rule laid down in Ex parteAugustine. Nor does the Texas statute cited justify the conclusion reached by the court, for on its face it only *Page 448 applies when bail has been granted after a hearing on habeascorpus.
The Supreme Court of Oklahoma, in the case of State v.Newman, 114 Okla. 228, 245 P. 999, held in a case where a defendant had been admitted to bail by the district court having jurisdiction of the matter, and it was afterwards sought to revoke the order:
"We therefore reach the conclusion that, when the district court, having jurisdiction, and having the matter properly before it, entered its solemn judgment and order adjudicating and finding that the defendant was entitled to bail, that judgment and finding is binding and conclusive, and is res adjudicata on that question."
In support of this rule the cases cited are Ex parteAugustine and Ex parte Jilz, supra, which, as I have indicated, are not in point on a state of facts like that before us in this case.
No other cases bearing on the question have been cited by counsel, nor can I find any. The only authority on a state of facts similar to that of the case at bar is from the state whose statutes are the ones from which those of Arizona are undoubtedly taken, and it is emphatic to the effect that after an indictment or information has been found, the trial court is not bound by an order made previous thereto allowing bail, but may review the question and take such action as it deems proper, subject, of course, to the right of review on habeas corpus in this court.
While it does not discuss the Kentucky statutes affecting bail, the language of the Supreme Court of Kentucky, in considering a somewhat similar question in the case of Adkins v.Commonwealth, 98 Ky. 539, 32 L.R.A. 108, 33 S.W. 948, is of interest on this point. The portion applicable to the present case reads as follows: *Page 449
"Another matter complained of is that the court, on entering upon the trial, disregarded the order of the county judge of Knox county, previously made, allowing bail; held the bond taken bad on its face, as not being taken by the proper officer; and then ordered the defendants into actual custody. There was no error in all this. It would be a strange perversion of the law if acounty judge could dictate to a circuit judge what course heshould pursue in the trial of one charged with felony in hiscourt. It was within the discretion of the court to order defendants into actual custody when the trial commenced. Neither should the order of the county judge heretofore made have any effect, or be regarded of any validity, if the prisoners desire to again give bail." (Italics ours.)
If we substitute "justice of the peace" for "county judge," and "judge of the Superior Court" for "district court," the pertinence of the quotation will be apparent.
But, laying aside all questions of the mere weight of authority, it seems to me the rule laid down by the majority is not in consonance with logic or justice, and represents a view not in accord with the more modern attitude towards criminal law. As we said in the case of Lawrence v. State, 29 Ariz. 247,240 P. 863:
"One of the chief causes for the alarming increase of crime and the lessened esteem in which the administration of criminal justice is notoriously held by the layman undoubtedly is the tendency of the courts to adhere to archaic rules of procedure, when the reasons which caused their adoption have long since vanished. In ancient times a man accused of crime had no right to counsel; could not even testify in his own behalf; had no means of compelling the attendance of witnesses; was not entitled to bail as of right; and the cards were in many ways heavily stacked against him. It was in order to lessen, partially at least, these heavy odds that the courts adopted the rule that any error against a defendant in a criminal *Page 450 case was presumed to be prejudicial. But of late years the situation has changed. Every disability of the defendant has been removed, and he is now brought to trial, not only with every right enjoyed by the state, but with many privileges denied the latter. As an illustration of this we cite a few instances: The defendant must be advised in advance of trial of the exact nature of the charge against him. The state can only guess at his line of defense. He may ask for a change of place of trial, and disqualify the trial judge. The state cannot. He always has more challenges to the jury than the state. He may take the depositions of absent witnesses on his behalf. The state may not take them against him. He need not testify unless he wishes, and the state cannot comment on the fact. If a state's witness fails to take the stand, the defendant may comment as he desires. The state must prove his guilt beyond all reasonable doubt. He may admit doing the act charged, and, if he sets up any special defense, such as insanity, self-defense, lack of criminal intent, etc., he need not prove it by even a preponderance of evidence. The mere raising of a reasonable doubt as to whether or not the defense is true acquits him. And above all, if he is finally convicted he may appeal at the expense of the state, and show in the appellate court any mistake committed in the trial below, while, if he be acquitted, no matter if as a result of the grossest error by the court, perjury by the witnesses, or bribery of the jury he may with impunity boast of his crime. He is free for all time, for the state may not by an appeal show the unjust acquittal and again place him on trial."
The rule stated by the majority of the court in substance is that an order of a committing magistrate, granting or refusing bail in a capital case, is res judicata when it is against the state, but is subject to review when it is not in its favor. It may be that it is in the power of the legislature so heavily to weight the scales of justice against society and in favor of a defendant accused, and on strong evidence, of the gravest crime known to our law, but, in the *Page 451 absence of a definite and express provision in the statutes to that effect, I cannot bring myself to hold what this decision in effect means: That, when one is accused of murder in the first degree, under the most atrocious circumstances, and where the evidence is overwhelming against him, if he can in some way deceive, influence, or persuade a lax, sympathetic, or ignorant committing magistrate into admitting him to bail, he may thus evade the express provisions of the Constitution and statutes in regard to bail in cases of that kind, and that the superior court, which has full jurisdiction in all other respects to try the proceedings, is helpless to correct a manifest and palpable miscarriage of justice and defiance of the law.
It is not necessary for me to express any opinion as to whether the evidence in this particular case shows that, in the language of the statute, "the proof of guilt is evident, or the presumption thereof great," nor does it perhaps matter greatly as to whether this particular defendant be admitted to bail or not. She and her fate, whatever it may be, will soon be but a memory of the past. But the consequences of the legal principles laid down in the majority opinion may persist long after all concerned herein are but dust. It is because I feel those principles represent a step backward on the long and hard road by which society is struggling toward a better order of things that I voice my protest. *Page 452