Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D.
On February 9, 1959 this court heard argument on the appeal of this matter and announced at the conclusion of the argument that the court had determined that the Superior Court, Law Division, had erred in discharging the writ of habeas corpus. The court announced that an opinion would be prepared as soon as practicable but that an order would be entered forthwith declaring the right of the plaintiffs (defendants to an indictment for murder) to be discharged in such reasonable bail as might be fixed by the trial court. On February 10 such an order was entered. As this court was given to understand that the merits of an appeal from our determination were to be argued in the Supreme Court on February 16, 1959, the preparation of this opinion has been expedited so that it may be available to the parties and to the Supreme Court prior to a determination of the appeal thereto.
Much of the factual background of this matter may be omitted from this opinion, in view of the narrowness of the issue as developed before the trial court and on the appeal. The plaintiffs were indicted for murder on August 12, 1958 by the Passaic County grand jury, the language of the indictment following Criminal Procedure Form No. 9. There is no reference to the degree of murder charged. R.R. 3:4-3(b). Plaintiffs have been incarcerated since July 23, 1958.
A motion to admit plaintiffs to bail was denied after a hearing on October 10, 1958 by a Passaic County judge. The judge had before him certain affidavits by law enforcement officers, including copies of statements given by the plaintiffs. He also heard testimony by Albert Graham, a child who was the brother of the deceased. It is not necessary to discuss the incriminating details thus developed. It suffices for present purposes to say that they indicated that the deceased, Ellen Graham, a three-year-old child who was the ward of the plaintiffs under placement of a state agency, was found dead in her crib on July 11, 1958, and that it was possible or probable that there was a causal relationship
between her death and beatings which were administered to her by both of the plaintiffs, involving the use of a strap and a wooden paddle, as well as the hands.
Many cases involving applications of this kind have adverted to the necessity that caution be exercised in discussing the facts, lest the remarks of the court prejudice either the State or the defense on the trial of the indictment. We therefore emphasize that nothing said in this opinion is intended or may be allowed to have any weight or influence whatsoever in the determination of any matter which may arise upon the trial of the indictment.
When questioned by the judge at the hearing as to whether the State had any evidence of either first degree or second degree murder, the assistant prosecutor answered that the evidence indicated second degree murder, i.e. , an intent to do serious bodily harm. The judge stated that he found no evidence to indicate the legal requisites of first degree murder but that he did find an evidentiary basis for second degree murder. On that premise he denied bail, concluding that there was sufficient indication "that the proof is evident" for purposes of R.R. 3:9-1(a), which, in language identical with that found in Article I, paragraph 11 of the Constitution of 1947, provides:
"All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great."
Another application for bail was made to a different Passaic County judge, but he declined to pass on it on the ground that he would in effect be reviewing the determination of a judicial colleague of coordinate rank.
Subsequently, the assignment judge of Passaic County granted a writ of habeas corpus to the plaintiffs for the purpose of reviewing the legality of their confinement. He conducted a hearing on the matter, and it was agreed by the parties that he might have resort to the same evidentiary material which was before the judge of first instance. He concluded that the proofs were sufficient to show a case of
murder of some degree, whether or not first degree, and that the constitutional provision was construable to withhold the absolute right to bail where there was proof indicating that the defendants might be convicted of some degree of murder, it being immaterial that there was no proof which would permit a finding of first degree murder.
The ruling of the assignment judge was based upon a series of cases, of which State v. Brown , 22 N.J. 405 (1956), was most authoritative, holding that murder is a single offense, divisible into degrees only for purposes of punishment, and that the crime is always to be considered a capital offense because a jury on the trial thereof may return a verdict of murder in the first degree, in which event the law provides for capital punishment unless the jury recommends life imprisonment. For reasons which will be detailed hereinafter, we do not regard the premise thus stated as to the nature of the offense, with which we are in complete agreement, as determinative of the proper construction of the constitutional provision regarding bail.
The briefs and oral argument of the parties on the appeal have kept the issue before us as narrow as it was in the trial court. The present representative of the prosecutor (not the representative who appeared in the Law Division), while taking the technical position, not advanced below, that the proofs would permit a trial jury to return a verdict of first degree murder, frankly conceded before us that the proof is not "evident" or the presumption "great" of the existence of the legal prerequisite for first degree murder of a premeditated killing. We do not regard the position of the State as implying any serious pretension that there is any reasonable basis at all to anticipate a verdict of murder in the first degree at the trial. The State has chosen to confine its position on the appeal to that which it successfully advanced on the hearing upon the writ, viz. , that evidence of guilt of murder in the second degree is sufficient to negative the right of bail under the Constitution and the rule of court. The plaintiffs, on the other hand, have refrained from any contention for present purposes that the evidence is not
sufficient to show second degree murder. Their position is simply that a showing no stronger than that does not constitute proof "evident" or presumption "great" of guilt of a capital offense within the meaning of the constitutional provision.
In view of the foregoing, we deem ourselves relieved of such troublesome and difficult problems, frequently arising on applications for bail in homicide cases, as the existence or strength of any presumption of guilt attaching to the fact of the indictment, or concerning the placement of the burden of proof or the quantum of evidence necessary to sustain or refute any burden imposed. See State v. Williams , 46 N.J. Super. 98 (Cty. Ct. 1957); State v. Goldstein , 40 N.J.L.J. 71 (Sup. Ct. 1917); State v. Kuchler , 3 N.J. Misc. 636 (Sup. Ct. 1925); State v. Capawanna , 3 N.J. Misc. 876 (O. & T. 1925); Ford v. Dilley , 174 Iowa 243, 156 N.W. 513 (Sup. Ct. 1916) (a most scholarly and exhaustive treatment of these subjects and a compendious collection of all of the authorities up to that date); State v. Teeter , 65 Nev. 584, 200 P. 2 d 657 (Sup. Ct. 1948); Code of Criminal Procedure of American Law Institute (1930), § 68; see also 8 C.J.S. Bail § 34, p. 54 et seq.
We refrain from expressing any opinion as to the extent of any presumption which should attend the return of an indictment for murder concerning the existence of evident proof or great presumption, in the constitutional sense, of the guilt of the defendants of a capital offense for purposes of bail. It may be noted that the brief of the prosecutor in the present case agrees with the contention of the plaintiffs "that an inquiry should be made into the facts behind a murder indictment on an application for bail." We should, however, express our disapproval of the apparent holdings in State v. Goldstein and State v. Kuchler , both supra , that the return of the indictment for murder is conclusive, or practically so, of the guilt of the defendant, for purposes of bail. This does not appear ever to have been the predominant view in those jurisdictions which have constitutional provisions like ours, and the commentaries
appended to the Code of Criminal Procedure, supra (1930), list only three jurisdictions so holding (including New Jersey on the basis of the Kuchler case), op. cit., supra , at p. 346. Sixteen jurisdictions are listed to the contrary on the basis of court decisions and six more by express statutory provision. Section 68 of the Code places the burden on the indicted person to show that the ...