delivered the opinion of the court.
It was intimated, after the close of the argument, 'that wo" should undoubtedly affirm the judgment of the Circuit Court, refusing to let the petitioner to bail for reasons then orally stated. It was also intimated that no" .case hád: been cited by counsel in which the court had, after indictment for murder in the first decree, under a statute like that of Florida in regard to that crime, admitted to bail Counsel for. petitioner has, since then, referred us to several cases in which persons indicted for murder have b.eeti admitted to bail either upon inspection of the testimony taken before the committing..magistrates, or.of the testimony before the grand jury, (whicli, in some' States, is preserved and ¿léd, j of upon testimony taken upon notice to the prosecutor and"the prosecuting" attorney. We have also given attention to'fhe sub*634,'ject by-consulting such,authorities as."were"at hand, within «the brief time at our -disposal,, and -the conclusion at which we arrive ,is,;that, the petitioner..is .entitled,'upon habeas cqrpus,,where he,is indicted for murder or other capitahoffense,.to produce, such .evidence as may- operate to'convince the cquyt that he. is, guilty, if . at all, of an . offense of-'such' grade-that he is entitled !to be discharged on bail,’or-'that there are such strong- 'doubts ¡¡that, upon..<the¡ case-as presented, a jury should not convict-.-of the capital-offense. -
Judge Tallmadge, of New York, in a very able review of the opinion of the court in McLeod’s case, published in the appendix to 26 Wend., page 697, says in concluding : “ The true rule upon the subject of bail or discharge, after indictment for murder, undoubtedly is, for the judge to refuse to bail or discharge upon any affidavits, or proof that is. susceptible of being controverted on the other side. When, however, the prisoner’s evidence is of - that positive and certain character'that it cánntít'be ‘gainsaid^ then the' pfisonér is entitled to be bailed or .discharged, _ as,in th”q case, where the man supposed to be murdered is living;, where -the- prisoner has been tried.£(,nd,acquitted of the,same offenseq-or where the-supposed murder'was a homicide 'committed''in a war between'two nations.”'' - -
This review was strongly' endorsed and its conclusions commended by. .Chancellor Kent, Chief,. Justice? Spencer, Roger M. Sherman,. Simon. Greenleaf ■ and - other- eminent jurists and writers as “ entirely conclusive upon every point.” ' ' ' • . '/ '.-¡i-.
We have therefore examined the testimony-and'pfóceed'ings brought up by. the writ of error, and upon consideration of tbe evidence before the Circuit Judge, we are not disposed tq-fevef se/his judgment.. ■ ..Nor. .-do we - ■ think oúr'Conelusion. would did ve been- different; ha'dr the Circuit Judge .ruled otherwise in the-.several matters.lembraced’.lhrtbeiexceptions.i -,v L-'.':- ; :r-. see- '-
to ..the. ¡question ráisedcupou, tbe:f%ot; stated;» ié¡ »,tke.rec*635ord that the indictment was found by a grand jury composed of fourteen jurors, while it is insisted that the law requires that there should have been at least sixteen jurors, we will not consider it in the present case. Such question may- be tried on plea in-abatement, or- motion to quash, according to practice at nisi prius. The indictment was found in a court of competent jurisdiction, and any error in its proceedings may be corrected by the writ of error..
The judgment is affirmed.