The petitioners apply to this court for the writ of habeas corpus and certiorari to bring up the proceedings had before the Judge of the City Court on their application before him on a similar writ, he having refused to admit them to bail. By the consent of the solicitor the issue of the writs is waived, and the record accompanying the petition is considered as duly returned.
It appears from the record that Abram Andrews was committed for an assault with intent to commit murder on one James A; Donalson, on the 27th March, Í851, and his wife Margaret on the 28th of the same month, as an accessory before the fact; Since their commitment, two terms of the City Court have elapsed, and no indictment has been found against them. And the reason why the judge refuses them bail is, that Donalson is shown by the proof of a surgeon to be in such 'condition-, from the wound inflicted by the prisoner, Andrews;, that in the opinion of the surgeon, he will die before the next- term of the court, which will be within a year and a day from the time the wound was inflicted; and we are left to infer from the record that the party is detained in custody, and not indicted for the minor of-fence, in order that should death ensue, the solicitor may prefer an indictment for murder-.
The bail is claimed as matter of right from the facts above stated; and for the purposes of this investigation we will assume that if Donalson should die, the facts would be such as to bring the case within the constitutional exception as to capital offences, “ where the proof is evident and the presumption great;” for, *585■ if the facts do not bring the case within such exception, the prisoners would be entitled to bail, to .appear -and answer for the . murder, should the party die.
Wo have carefully examined the able argument submitted in writing by the counsel for the prisoners, buthav.e-bccn unable to ..persuade ourselves that the statutes -contemplate, that parties situated as the record and proof show these are, are entitled to be indicted and tried, before it is ascertained whether the capital felony will be consummated by the death of .the -wounded person.' The statutes make no provision for cases -of -this kind, and we .-are thrown upon the constitutional provision and the common law governing such cases, it is very certain, we think, that the act of 1807, which authorized the discharge of the -accused, if -not indicted at the second stated term, was never intended to embrace a case like the present. True, the parties are charged with what the statute makes a felony, -but the > court --is advised/ that the party wounded will die before the next court, in which event, as wo have said, we must assume as the predicate for this .'opinion, that a more aggravated felony, a -capital offence, will have developed itself. It cannot be -true -that the Legislature designed to compel the State to try the offender for the minor offence, and thus exonerate him from liability -for the greater, or on default of indicting him for two successive -courts, entirely to discharge him. Neither do the acts of 1827, nor the provision •in the Penal Code, (Clay’s Dig. 444, § 40,) embrace the case or confer any right to bail; they refer to trials and commitments for offences which have been consummated. Here the party could not bo indicted, for the offence, though it may’ be morally certain that it will bo completed by tbe death of the party woum-ded, has not yet been consummated. We have been referred to no case, where, under such circumstances, the State has been -compelled to indict, or where the prisoner has_ been discharged for a failure to try until after the time has elapsed within which, if the wounded person die, the law would adjudge it murder.
It is laid down by the Supreme Court of Massachusetts, in The Commonwealth v. Caleb Trask, (15 Mass. 277,) “that where, one is imprisoned for dangerously wounding another, so that his •life is in danger, he is to be kept in prison without bail, until it ¡shall probably appear that the danger is over-.” And fhe court, ■predicate their opinion upon what Lord Hale observes in his, *586Picas of the Crown, (vol. 2, p. 184,) who says:: “IT A dangerously wound B, he may be imprisoned till it be known whether the party will die or live, and regularly is not to-be bailed, till it probably appear that the danger is over..”
Our opinion is, that if the facts of the case made by the prisoners are such as entitle them to trial as matter of right under the constitutional provision j in other words, if they are such' that in the event of the death of the party wounded, they would, be entitled to bail, they ought not to be denied bail, because the party injured still survives. But unless they can bring their case within this category, as there is no statute.which requires-the court to bail them, and the purposes of justice,, in the event that a capital felony will shortly be consummated, can only be-carried out by securing the prisoners to answer for the offence they must remain in prison until' it may be seen whether the.wounded party will live or die.
Let the motion be denied.