Dissenting Opinion.
Watkins, J.This application is addressed to this court, and the object of relator is to obtain bail.
The application is made in pursuance of the provisions of Art. 89 of the Constitution, which expressly confers on this court the requisite jurisdiction to entertain it and grant the desired relief.
They are that “ the Supreme Court and each of the judges thereof shall have power to issue writs of habeas corpus at the instance of persons in actual custody, incases when it may have appellate jurisdiction.”
.This is a grant of original jurisdiction to this court acting as such, which is altogether independent of the supervisory jurisdiction, which is conferred upon it by Art. 90 of the Constitution.
A like jurisdiction is given to district judges within their respective districts. Art. 116.
Hence it is clear that either may act; that is to say, this court, or the judges thereof, or the judge of the district wherein the applicant is imprisoned.
The case presented is of a person who was indicted for murder. Was subsequently tried on that charge, and a mistrial was entered, the jury failing to agree. Was granted bail subsequently in the sum of 82000. Being, for the time, unable to give the requisite security, and suffering from illness, he was temporarily paroled; and, while thus paroled, made bis escape. The order granting bail was revoked.
Afterward he returned and was again incarcerated in jail. . At the next issuing term of court the case was fixed for trial; and on *671the following day the fixing was set aside on the suggestion of the District Attorney. During the same term of the court the defendant made a formal application for the fixing and trial of the case, but it was refused by the court, and a continuance granted on the written application of the District Attorney.
At this time the defendant made application for bail, and the judge declined to entertain it, or to consider it at all.
To this deolination to act the defendant reserved a bill of exceptions, and the judge appended his reasons.
In his present petition the relator sets out this state of, facts, and prays that this court, acting as such, grant him relief. In response the District Judge and District Attorney have each made a statement of facts, differing in no essential particular from the judge’s statement in the bill of exceptions.
To this application is appended a certified copy of the entire record of the State vs. Vickers, including the bill of indictment, minutes of court, bills of exception, order fixing amount of bail, and the subsequent cancellation of same; and also the State’s application for a continuance, the defendant’s subsequent application for bail, and the District Judge’s reasons for declining to entertain the same— thus fully exhibiting all the proofs necessary or useful in enabling us to decide the question presented for the determination of this court.
For the purpose of accuracy I have appended the reasons the District Judge assigned, viz.: “ The above statement might imply that the court had, on defendant’s application, gone into the question of bail; if so, it is that far wrong. The defendant asked the court to hear and consider an application for bail, and to receive evidence on the question, which, on objection by the District Attorney, the court declined to do. The defendant then stated his purpose to offer, if the question was opened, the evidence mentioned above. The court was of the opinion that where the witnesses had left the State, through the instrumentality and the procurement of those working for and managing the defence (not the lawyers, of course), as the court was satisfied is the case here, and the State was then forced to apply for a continuance, it was not a proper case for the court to go behind the indictment and inquire into the question of bail. It is true that an order for bond was once granted after hearing the evidence at the mistrial, and afterward set aside, *672but in granting that order the court was largely influenced by the fact that the prisoner had originally surrendered the day after the killing and shown no disposition to avoid a trial, and one trial had been had resulting in no verdict. He failed to give the bond and made his escape by feigning sickness and deceivingOthe doctors and deputy in charge of him; went to the woods and avoided arrest until the next court passed (August term, 1894), and now a trial is again defeated by the means above described and set forth in the affidavit of the District Attorney. Under these circumstances the court felt constrained to refuse to go into the question of bail.”
In my opinion this court is fully vested with original jurisdiction to act, as the charge made under which the defendant is indicted is murder, of which it has appellate jurisdiction. Oonstitution, Arts. 81 and 89.
Prom the statement of the District Judge it is clear that he declined to entertain the application at all, for he says:
“ The above statement might imply that the court had, on defendant’s application, gone into the question of bail; if so, it is that far wrong. The defendant asked the court to hear and consider an application for bail, * * which on objection from the District Attorney, the court declined to do.”
The Oonstitution declares that “all persons shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident or presumption great." Art. 9.
It has been frequently held that the finding of an indictment is “ a presumption great,” which precludes the accused from the benefit of bail.
But it has also been frequently held that in the event of a mistrial and the failure of the jury to agree, that presumption is overcome. It has been held that in case the defendant demands a trial and it be refused, and a continuance is granted at the request of the State, the presumption is overcome.
In this case not one but both of these incidents occurred.
Recognizing the right of the defendant to bail, under these circumstances, the District Judge granted an order of bail, and fixed the amount at two thousand dollars. But six months later he revoked the order, on the ground that the defendant had “ escaped and shown a disposition to avoid a trial.”
*673But in defendant’s bill of exceptions, which was taken to the judge’s declination to entertain his application for bail, it is stated that “after his alleged escape, he voluntarily surrendered; and this statement is not denied by the judge in his reasons for refusing the request. On the contrary, the fact is admitted, for he says: “He failed to give bond and made his escape; * * * went to the woods and avoided arrest until the next court had passed,” etc.
But he was again incarcerated in jail, and at a subsequent term of court the case was fixed for trial at the instance of the District Attorney.
It is therefore clear that in so far as the escape had any prejudicial effect upon the presumption of the guilt of the defendant, the same was removed by his subsequent surrender.
This question was squarely decided in the recent case of State vs. Stewart, 47 An. 410.
In that case a motion was made to dismiss the defendant’s appeal, on the ground that he had escaped from jail subsequent to the granting of the order of appeal, and to the motion was appended an ex parte affidavit of the sheriff, making proof of that fact. In reply the defendant’s counsel filed with the record a subsequent affidavit of the same officer, showing that the defendant had voluntarily surrendered himself.
On these two affidavits this court assumed full and complete appellate jurisdiction of the appeal, overruled the motion, decided the case on its merits, reversed the judgment appealed from, and remanded the case for a new trial.
In my opinion that decision is correct.
But in view of the fact that in the exercise of this court’s appellate jurisdiction it examined and passed upon that issue, how can it decline to do so now in the exercise of its original jurisdiction?
And if the facts be examined and passed upon — as I think the court is bound to do — how can a like conclusion be avoided? That is to say that the defendant’s subsequent surrender neutralized the prejudicial effect of his previous escape.
Disembarrassed of that impediment the defendant is quite as much entitled to relief as Stewart was.
In so far as the further statement of the judge to the effect that certain “ witnesses for the State had left the State through the in-*674strum entality and the procurement of those working for and managing the defence1' is concerned, I do' not think it entitled to consideration. Surely an accused person can not be denied his constitutional right to bail on the supposition that his friends have influenced some of the witnesses to leave the State.
On this hypothesis he might be doomed to perpetual imprisonment.
For these reasons I dissent from the opinion of the majority.