Applicant is in custody charged with murder in the first degree, and upon an examination of the case on habeas corpus-was denied bail, and has appealed to this court.
It is agreed that the proof is evident that the applicant is guilty of' murder in the first degree. It is also agreed that at the time applicant, committed the murder he was not seventeen, but was over sixteen years, of age. Counsel for the applicant contends that, as under the law, the applicant can not be punished with death because he had not arrived at, the age of seventeen years at the time he committed the murder, therefore the case, as to him, is not a capital one, and he is entitled to bail.
“All prisoners shall be bailable by sufficient sureties, unless for capital, offenses, where the proof is evident.” Bill of Rights, sec. 11. A “capital offense ” is one for which the highest penalty is death. Penal Code,. *247art. 55. Murder in the first degree is a capital offense. Penal Code, art. 609. But a person who commits murder in the first degree before he arrives at the age of seventeen years, can not, under our statute, be punished capitally, that is, with death. Penal Code, art. 35.
Does this statute entitle the applicant to bail? We think it does. As to him, the punishment can not be death, and his offense is not therefore a capital one; for an offense is not capital which may not be punished with death. This statute abolishes capital punishment in all cases where the offender has not, at the time of the commission of the offense, arrived at the age of seventeen years. Whenever the death penalty is abolished by law, the offense to which it was attached is no longer a capital one. In re Perry, 19 Wis., 676. We conclude that by force of said statute the applicant is entitled to bail.
In an able brief and argument the Assistant Attorney-General questions the constitutionality of the statute exempting persons under seventeen years of age from the death penalty, upon the ground that it is class legislation, and contrary to the principles of our government. We do not regard the statute as obnoxious to this objection. It is not class legislation within the meaning of that term. Cooley’s Const. Lim., p. 487, et seq. As to the policy of the statute, that was for the consideration of the Legislature, and it is not within the province of the courts to pass upon it. We believe that the Legislature had the power to enact the statute, and that it is a valid law.
It is our judgment that the applicant is entitled to bail, and he is granted bail in the sum of ten thousand dollars, upon the giving of which in accordance with law, he will be released from custody.
Ordered accordingly.
Judges all present and concurring.