In considering the appellant's motion for rehearing we have made extensive research of the decisions of the courts in this and in other jurisdictions in an effort to determine, if possible, whether or not expression could be given to a rule applicable to the case now before us and which would be a guide to district judges in similar situations. It is our conclusion that much power is lodged in the district judge who hears the facts, even *Page 516 though this Court must pass upon the same facts in determining the rights of the party seeking bail under our constitution. This is a right safeguarded as strongly by our Federal Constitution as any other enumerated in the Bill of Rights. Our State Constitution on this question has been drawn with respect to the provisions of the Federal Constitution. The legislature has at no time passed any laws directly or indirectly on the subject to which we can point as a guidepost. While it is provided that one convicted of a felony and given a penalty of more than fifteen years may not be released on bail pending appeal, we find nothing in this provision to aid us in a case prior to conviction. We might view the facts and circumstances of a case to be such as would give assurance that the accused will be convicted and that his punishment will exceed fifteen years, but we cannot say that accused would foresee this. The hope that springs eternal in the human breast sustains the criminal in his darkest hour, in like manner as it does the afflicted and the bereft. The likelihood of such person forfeiting his bond after conviction is quite different from that before conviction.
The expressions of the original opinion are in accord with good reasoning and it is not to be understood as relying solely on the nature of the offense charged but on the facts and circumstances indicated by the evidence in the case. We cannot say that because one is charged with an offense for which death may be inflicted as the penalty that he is not entitled to bond. Neither can we agree with the full implication which might be given to the Vermillion case, supra, that bond must be granted in every case of robbery with firearms unless blood has been shed. It is quite possible that all of the planned circumstances of the case and the execution of the plans might be of such a dastardly nature as to make it perfectly apparent that any dispassionate jury would likely inflict the death penalty. If so, bond should not be granted. The circumstances of such cases cover a field so varied that it is practically impossible, if not altogether so, to state a rule for the guidance of the court which would be more helpful than harmful. We find ourselves in this case, as has been frequently true, reaching the conclusion that we can only take the sum total of all the evidence found in the record and decide the question now before us on the merits of this case, with a full consciousness of the fact that we have not been able to find another exactly like it. Though there are many with similar circumstances, a slight variance may make the difference. We must respect precedents of the courts in the years past on this question, because we have no other guide to direct us. *Page 517
The original opinion might be in error in its reference to the Allen case and its effect on previous decisions. However, the writer has reviewed the statement of facts and all of the questions presented in that case, for whatever purpose it may serve us here, and it appears that it is just one of those cases in which a death penalty was assessed, while many others are found in the books, for a similar offense and with much more aggravated circumstances, where the penalties have been a great deal lighter. This is true both before and after the decision in the Allen case was reported in the books. The writer doubts that it should have any effect on the question of granting bail.
Much as we agree with the expressions in the original opinion, we do not think that a rule should be made whereby bond should be denied because of the charge laid in the indictment. We agree with the thought that one may not be entitled to bond in every case where no injury was inflicted. The circumstances of the case may be such as to support a refusal to grant bail independent of the question of injury.
It is our conclusion, under the facts here presented, that bail should be granted and we accordingly grant appellant's motion for rehearing and now reverse the judgment of the trial court denying bail, and direct that appellant be released upon giving a bond, with good and sufficient sureties, in the sum of $25,000.