For affirmance and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Francis, J.
[33 NJ Page 369] The defendant, who is under indictment for murder, made two applications to the County Court for admission to bail. The first application was denied; on
renewal almost six months later, bail was fixed at $25,000. Release was stayed to permit the State to seek leave to appeal. This court granted such leave and continued the stay pending determination of the matter.
In charging the defendant with murder, the Grand Jury utilized the customary short form of indictment which has been in use in New Jersey for many years and which is authorized by the Rules of Criminal Practice, R.R. 3:4-3(b). See Graves v. State, 45 N.J.L. 203 (Sup. Ct. 1883), affirmed 45 N.J.L. 347 (E. & A. 1883). It simply charges that Konigsberg and others "on the twelfth day of November, 1958, in the City of Jersey City, in the County of Hudson * * * did wilfully, feloniously and of their malice afore-thought kill and murder Joseph E. Barbito * * *." When the motions for bail were presented neither party submitted any affidavits or testimony. The Prosecutor made certain representations in open court as to facts in possession of the State which would be proved at the trial and which in his judgment would warrant a jury verdict of first degree murder. The sufficiency and competency of oral representations in this type of proceeding will be considered hereafter. Our attention shall be devoted first to the more fundamental legal problems.
At common law in England and in this country, including New Jersey, the grant of bail in all cases rested in the discretion of the courts. State v. Rockafellow, 6 N.J.L. 332 (Sup. Ct. 1796); State v. Capawanna, 3 N.J. Misc. 876 (O. & T. 1925); Fischer v. Ball, 212 Md. 517, 129 A. 2 d 822 (Ct. App. 1957); 4 Blackstone's Commentaries 298, 299 (4 th ed. 1899); 2 Hale's Pleas of the Crown 129, 130 (First Amer. ed. 1847); 1 Chitty, Criminal Law 97 (2 d ed. 1836); Annotation, 39 L.R.A. (New Series) 752 (1912); 6 Am. Jur., Bail and Recognizance § 24; and see, N.J.S.A. 2 A:67-14(c). The authority to do so seems to have been considered inherent. State v. Rockafellow, supra; Principe v. Ault, 62 F. Supp. 279 (D.C. Ohio 1945). Probably because judges exercised their discretion adversely to the
accused so frequently (see Ford v. Dilley, 174 Iowa 243, 156 N.W. 513, 525 (Sup. Ct. 1916); Orfield, Criminal Procedure From Arrest to Appeal 104 (1947)), the people of various states of the Union began to include liberal provisions relating to bail in their Constitutions. The first instance occurred in Connecticut in 1818 and the language employed set the pattern for the organic law of all states which later dealt with the subject. Article 1, section 14, said:
"All prisoners shall, before conviction, be bailable by sufficient sureties, except for capital offenses, where the proof is evident, or the presumption great."
Since that time, 40 states, including New Jersey, have adopted substantially the same clause restraining and controlling judicial discretion, thus safeguarding individual freedom prior to criminal conviction. In re Corbo, 54 N.J. Super. 575, 583 (App. Div. 1959); Index Digest of State Constitutions, Columbia University 48 (2 d ed. 1959); Code of Criminal Procedure, American Law Institute 338, 341 (1930).
The provision first appeared in a constitution of our State in 1844. The Constitution adopted in that year contained precisely the same language as that of Connecticut. Article 1, para. 10. It is interesting to note that in the minutes of the Convention a motion was made to strike out everything after the word "offenses" "so as to prohibit entirely the admission to bail, of persons charged with capital offenses." It was defeated. Proceedings of the New Jersey State Constitutional Convention of 1844, p. 157. The 1947 Constitution repeats the 1844 provision verbatim.
As a consequence of the Constitution the right of the individual to bail became a basic one. Now the courts are under a mandate to allow bail in all criminal cases, including capital offenses, i.e., those for which the death penalty may be imposed (State v. Williams, 30 N.J. 105, 125 (1959)), excluding only those instances of capital offenses "when the proof is evident or presumption great."
It thus appearing that a person accused of a capital offense is entitled to bail unless the proof is evident or the presumption great against him, we come to the principal questions to be resolved. When an application for such conditional release is made, on whom does the burden rest of persuading the trial court that the case is within or without the exception? And in that connection what is the probative force of the indictment?
Attempts to solve these problems in other jurisdictions have produced conflicting results. The decisions fall into three categories: (1) the burden is on the state to adduce some facts in addition to the indictment in order to satisfy the court that the case against the accused meets the constitutional requirement; (2) the indictment is prima facie evidence of a capital offense within the constitutional exception and therefore the burden is on the defendant to demonstrate that the proof is not evident nor is the presumption great against him; and (3) the indictment is conclusive against the allowance of bail. In re Corbo, supra, at pp. 583-584 of 54 N.J. Super.; Ford v. Dilley, supra, containing an exhaustive and well reasoned treatment of the subject; Ex parte Landers, 110 Tex. Cr. R. 604, 9 S.W. 2 d 1106 (Ct. Cr. App. 1928); Ex parte Ray, 86 Tex. Cr. R. 582, 218 S.W. 504 (Ct. Cr. App. 1920); Ex parte Newman, 38 Tex. Cr. R. 164, 41 S.W. 628 (Ct. Cr. App. 1897); Commonwealth v. Stahl, 237 Ky. 388, 35 S.W. 2 d 563 (Ct. App. 1931); State ex rel. Murray v. District Court, 35 Mont. 504, 90 P. 513 (Sup. Ct. 1907); State v. Kauffman, 20 S.D. 620, 108 N.W. 246 (Sup. Ct. 1906); Annotation 39 L.R.A. (New Series), supra; Orfield, supra 108, 109; " The Administration of Bail," 41 Yale L.J. 293 (1931); A.L.I. Code of Criminal Procedure, supra, Commentary to Section 68.
In searching for the just rule to be employed on applications for bail, certain immutable factors must be recognized. Bail is a constitutional right, one which the judiciary must ...