For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Francis, J.
The Union County Grand Jury indicted defendant Johnson for murder, and shortly thereafter he applied to be released on bail pending trial. On July 29, 1971 following a hearing the trial court found there was a fair likelihood that Johnson was in danger of a jury verdict of first degree murder, and therefore he was not entitled to bail. State v. Konigsberg, 33 N.J. 367 (1960).
Subsequently this Court in State v. Funicello, 60 N.J. 60, cert. den. sub nom New Jersey v. Presha, 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972), pursuant to a mandate of the United States Supreme Court, ruled that the death penalty provision of the New Jersey homicide statute was invalid. It then appearing that if upon trial Johnson was found guilty of murder in the first degree he could not be sentenced to death, his motion for bail was renewed. The motion was granted and a further hearing ordered to fix the amount of bail. On the State's application we stayed the proceeding and granted leave to appeal directly to this Court so that the validity of the bail order might be considered at the same time as State v. Lyle, 61 N.J. 179 (1972), decided today.
Article I, par. 11 of the Constitution deals specifically with the matter of bail. It provides:
All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.*fn1
As we indicated in Konigsberg, 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. Apparently because of the harsh attitude of judges on the subject various States began to include liberal provisions for bail in their early Constitutions. Connecticut, the first State to do so, in 1818 provided for allowance of bail in all cases except capital offenses. The language quoted above was used in doing so and we copied it later into our 1844 Constitution. Subsequently 40 States followed suit, using substantially the same command. In re Corbo, 54 N.J. Super. 575, 583 (App. Div. 1959), certif. den. Corbo v. Donahue, 29 N.J. 465 (1959).
Although the rule was not incorporated into our Constitution until 1844, its existence by statute preexisted the 1776 Constitution. Chapter VIII of the 1682 Laws of the Province of East Jersey provided "That all persons arrested shall be bailable by sufficient sureties, unless for capital offenses, where proof is evident or presumption great." Leaming & Spicer, Grants and Concessions of New Jersey, 1664-1702, 235 (1881). The depth of the feeling of New Jersey citizens in this regard is shown by the proceedings of the Constitutional Convention of 1844. It was proposed there that the qualifying phrase "where proof is evident or presumption great" be exscinded so as to bar bail
for all capital offenses. The motion was defeated. Proceedings, New Jersey Constitutional Convention, 1844 at 157.
As of 1970 the Constitutions of 37 States by language similar to ours had established such a right to bail in non-capital cases. These Constitutions, including that of New Jersey, also contain the additional mandate that "Excessive bail shall not be required." Twelve State Constitutions and the Eighth Amendment of the United States Constitution incorporate only this latter prohibition.*fn2 See, Preventive Detention, Hearings Before the Subcomm. on Constitutional Rights of the Sen. Comm. on the Judiciary, 91st Cong. 2nd Sess. at 1193 (1970).
Historically, therefore, in New Jersey the right of the individual to bail before trial is a fundamental one. Certainly since 1844 at least, the courts have been under a mandate to allow bail in all criminal cases, including capital offenses, excepting only those instances "when the proof is evident or the presumption great." A capital offense has long been regarded as one for which the death penalty may be imposed. State v. Konigsberg, supra; State v. Williams, 30 N.J. 105, 125 (1959); In re Corbo, supra. So prior to Funicello a pretrial denial of bail meant that the accused was charged with a homicide for which the death penalty might be imposed, and that the proof of his guilt or the presumption thereof was great. Funicello having invalidated the death penalty for the type of homicide charged against Johnson, the question for decision now is whether the Constitution requires that he must be released on bail.
Obviously the duty of the judiciary is to obey the mandate of the Constitution. To deny bail in defiance
thereof is to punish an accused before conviction, and to ignore the presumption of innocence which attends every citizen charged with crime -- actions which are not tolerable under our system of justice. The attitude of the courts toward the present issue, must be deemed presaged by State v. Williams, supra, 30 N.J. at 125. In that case Williams was indicted and tried for first degree murder. At trial the jury found him guilty of second degree murder. We held that such finding constituted an acquittal of first degree murder, and despite our reversal of the conviction and order for new trial (State v. Williams, 29 N.J. 27 (1959)), on principles of double jeopardy, he could not be retried for first degree murder. Williams having sought release on bail pending the retrial, ...