(concurring.) — The Constitution ordains that “no person shall be * * * deprived of * * * *245liberty * * * without due process of law.” Sec. 12 Declaration of Rights. This section is designed to secure the right to personal liberty at all times when that right has not been forfeited and such forfeiture authoritatively determined by due course of law.
The Constitution also provides that “all persons shall be bailable by sufficient sureties, excépt for capital offenses, where the proof is evident or the presumption great.” Sec. 9 Declaration of Rights. This section is designed to secure the right to bail in all cases, except where from the evidence by which an alleged crime may be legally proven it appears with reasonable and evident or manifest certainty that the accused is guilty of a capital offense as charged.
The organic law contains provisions that “all courts in this State shall be open, so that every person for any injury done him in his * * * person or reputation * * * shall have remedy, by due course of law, and right and justice shall be administered without * * * delay” and that “the writ of habeas corpus shall be granted speedily and of right.” Secs. 4 and 7 Declaration of Rights. These sections are intended to secure the right to a prompt and speedy determination by competent tribunals of the right to personal liberty when that right is duly alleged to have been violated. If a person who is duly charged with a crime is denied the right to bail when the offense charged is not a capital offense or when the charge is of a capital offense and the proof is not evident or the presumption is not great of the guilt of the accused of the capital offense charged, such denial of the right to bail is a deprivation of liberty without due process of law in violation of the Constitution as well as a denial of the organic *246right to hail in all cases except for capital offenses where the proof is evident or the presumption great; and upon complaint duly made it is the duty of the courts by due procedure and without needless delay to determine whether the right to personal liberty is denied without due process of law or whether the organic right to bail is unlawfully denied, and to afford apropriate relief in due course of law. The use of the writ of habeas corpus to speedily determine whether a person charged with a capital offense is entitled to bail before trial and conviction, is authorized by law so as to render effective the rights to bail and to liberty as provided by the Constitution.
In a trial on a charge of a capital offense, the issue to be determined is whether the defendant is guilty or innocent of the capital offense charged; and the burden is upon the State to show by competent evidence beyond a reasonable doubt that the defendant is guilty of the offense charged. The requirement that the evidence shall show guilt beyond a reasonable doubt, is a rule of judicial procedure designed to secure the organic right to personal life and liberty where that right has not been by due process of law clearly and indubitably shown to have been forfeited by the commission of the crime charged.
In an application for bail under a charge of a capital offense the accused is not on trial to determine the ultimate question of guilt or innocence, but the issue to be determined is whether or not on the entire evidence produced at the hearing, the proof is evident or the presumption great of the guilt of the accused of the capital offense charged, so as to adjudicate whether or not the accused is, before conviction, entitled to bail under the Con*247stitution; and the burden is upon the accused to produce the entire evidence, including that on the part of the State as well as that on the part of the accused, and to show from such entire evidence that the proof is not.evident and the presumption is not great that the accused is guilty of the capital offense charged. The requirement that the proof shall be evident or the presumption great of guilt of a capital offense, before a person may lawfully be denied a right to bail, is a mandate of the Constitution de^ signed to secure the organic rig’ht to personal liberty before conviction of a capital offense when the proof is not evident or the presumption is not great of the guilt of the accused of the capital offense charged. The hearing on application for bail and the trial to ultimately determine the truth of the charge are essentially different in the issues to be determined, in the procedure to be observed and in the object to be attained. The quantum of proof required by rules of judicial procedure in a trial to ultimately determine the question of guilt or innocence with reference to punishment or acquittal, i. e. that guilt must be shown beyond a reasonable doubt, is not necessarily the same as the quantum; of proof required to show a right- to bail under the Constitutional provision that all persons shall be bailable even when charged with a capital offense, where the proof is not evident and the presumption is not great of the guilt of the accused of the capital offense charged.
The question whether the evidence is legally sufficient to sustain a verdict of guilty of the capital' offense charged, is not to be determined on an application for bail upon the evidence then adduced. That question is to be determined at or after the trial by the trial court and on writ of error by the appellate court, and such de*248termination is to- be made upon the evidence adduced at the trial. This is so-, even though the evidence be the same at both hearings; but the law does not require and the actualities of life do not make practicable, the production at a trial more or less remote in time from the application for bail, exactly the same evidence that was adduced at the hearing on the application for bail. Thus it is made manifest that on an application for bail the only question to be determined and the only consideration, is whether the accused has from the whole evidence shown that the proof is not evident and the presumption is not great of his guilt of the capital offense charge'd. This is accomplished when it appears from a consideration of the entire evidence that the proof of the guilt of the accused of the capital offense, not of a lesser offense that may be included in the charge, is so- clear as to be evident or plainly manifest from the evidence that, a d-o-ubt -having a substantial basis in the evidence is not apparent from the whole evidence, and that from the entire evidence the presumption of guilt of the capital offense as charged is not great, that is, not so strong as to make guilt of the capital offense so plainly evident that a doubt is not clearly well founded in the evidence adduced. If any essential element of an offense is not shown the offense is not shown.
The capital offense here charged is that the accused did ravish and carnally know “a female of the ag'e of ten years or more, by force and against her will.” On this application for bail the -burden is on the accused to Show from all the evidence that the proof is not evident and that the presumption is not great that he is guilty of the capital offense charged. This burden is met when it appears from all the evidence adduced that the proof is *249not evident and the presumption is not great of either essential element of the offense charged, i. e. that he either did not as alleged ravish and carnally know the named female by force or that he did not do so against her will.
As from the testimony of the prosecutrix and the other evidence adduced at the hearing, the proof is not evident and the presumption is not great that the carnal intercourse, if had, was “against her will,” the accused is entitled to bail.
Whether the evidence adduced on this application for bail would, or would not be legally sufficient to sustain a capital conviction is not a subject of consideration here, since there has been no conviction. As at a trial on this indictment when other and different issues are to be determined, the evidence then adducd may not be exactly the same, and no more and no less in its extent or probative force than that taken in this proceeding, there is no just basis or legal authority for considerations of, or expressions as to the effect of, evidence that may hereafter be adduced at a trial, and no such questions are considered and no such expressions are indulged in here.
Evidence may be legally sufficient to sustain a conviction of a capital offense where nothing prejudicial to the accused occurred at the trial, when, even if it could have been exactly the same on an application for bail, such evidence may have been insufficient to make the proof evident or the presumption great of the guilt of the accused of the capital offense charged, so as to warrant a denial to him: of his organic right to bail.
The conclusion here reached should have no influence on the determination of the guilt or innocence of the accused at the trial that may be had for that purpose.