Goff, Recorder (orally).
Owing to the limited time -at my disposal since yesterday, I have not had time to reduce to writing my views upon thequestion submitted , in this proceeding. Therefore, I will have to .express myself orally from the bench. ■
The right to bail in criminal cases, as in the one presented here, was never- .recognized in common law. The light to bail, in civil eases was always recognizedin common law, ■because there it was a breach of contract, .and the bail to be given would be there for breach.of contract; but in criminal cases the original principle upon which bail was first founded was embodied in the ancient maxim, “ a body for a hody,” which in time was rendered equivalent to the bailor or surety offering, or pledging himself to pay a certain sum of money upon the failure of the person bailed to appear for trial. It was a recognizance to do a certain thing, to produce the body •of the person or to pay a certain sum of money. The bailor hence became the jailor of the person bailed, into whose custody the prisoner was surrendered, and the bailor was held to be responsible to produce that prisoner at any time during the term of the court at which he was cited to appear. The later statutes and the English law made some changes from the common-law rule, hut changes particularly affecting the power of justices of the peace to admit to bail, and not, in substance, affecting the power of the judges of courts of superior criminal jurisdiction, to wit, the Court of King’s Bench and the judges of the Court of Assizes; their discretionary powers under the common law remained untouched, even by the statute of Westminster. . So that, under the common law and statute law of England, the right to bail in cases of misdemeanor was held to belong to the accused, but the right to bail in cases of felony was never recognized or conceded; indeed, it went so far that, in any case, judges of courts of superior criminal jurisdiction exercised discretionary power as to whether they would admit certain persons to bail under any circumstances — persons whose common fame was bad, persons who were recognized as common thieves, persons they had reason to apprehend from their reputation, habits, associates or financial standing would escape the jurisdiction of the court. In other words, these judges of the higher courts of criminal jurisdiction always exercised that discretion, no matter what the grade of crime was.
The statute law of the state of New York, practically speaking, embodies the common law and statute law of England; and it is this, that in cases of misdemeanor the right to bail is absolute, but in cases of felony the right to bail is one of discretion, to be exercised by the judge of the court having jurisdiction of the case on trial. As this case is presented the defendant is charged with a felony,,and his right, to bail on that ■ charge is not absolute, but rests.in the -discretion of,the court, and in the further discretion of the court to examine into the question as to the .probability of this defendant appearing for trial when called; and, in testing that probability, the court has a right to take into consideration the reputation which he has borne, acknowledged through the lips of his counsel at the bar; the fact that he has been a professional thief for many years, and the common character which surrounds , his name. x
So that we treat the question here as one of discretion, and not one of right.
In addition to that legal phase of the case, another questioh has been presented by the defendant. He has been brought to the bar on .a charge of felony; he has interposed a plea of present insanity; through the lips of his- counsel he has, in effect, said to the court: “ I am now insane; I am incapable of understanding my case or of consulting with my counsel; therefore, it is improper that I should he,at large. I, therefore, call upon the court to determine, that question, and, if determined in the affirmative, as I contend,.I must be immured in some place of safety for the protection of myself as well as for the protection and safety of society.” . ■ ’ •
That is, in effect, what this defendant says.» ’ It is different from a plea of not guilty. It is an affirmation; an affirmative. issue interposed by this defendant, an issue which he must maintain and prove; and, it being an affirmation made solemnly in court, the court cannot presume that it is not made in good faith, or that it is untrue. The court must,rather, presume that when reputable counsel makes that plea and affirmation it is made in good faith and that it is true; and, therefore, the court ordered that issue- to be tried, and to be" tried upon a .day to suit the convenience of counsel for the defendant and the district attorney,. three days from this date.
Pen ding, the trial of that issue, this defendant comes in and asks to he admitted^ to hail; this defendant who has( said, by his plea of present insanity, that he is incapable of understanding what he is doing, or of advising his counsel.
It is incomprehensible to me that a defendant who has made that plea should, in the next breath, say, “ I am now sane; I can comprehend what I"am doing, ana I want, to be admitted to bail, in order that I may be examined as to my sanity outside the prison walls.” I. cannot conceive the Ipgie or reason of that position. A person who claims to be insane by that plea places himself under the guardianship of the •court. The court, by its inherent power, has the right to control the custody of the person who claims to be insane, if that claim be well founded and determined by judicial decree.. When the conscience of the court is properly informed upon that question, then the court has the power, not only for the - protection of the prisoner himself, but for the safety and well-being of society, to immure that person in some place, for. safekeeping and proper treatment. The proceeding pending is a proceeding simply to inform the conscience of the court, through the intervention of a trial jury; and while that: proceeding is pending this defendant asks to be admitted to-bail.
I have been unable to find any authority in point upon the-question directly d etermining the question in issue. Counsel for the defendant has cited two cases which have occurred in the courts ofthis city— the Fhinelcmder and Field cases. From an examination of those cases I am satisfied that counsel is-somewhat mistaken in his application of them to the case at bar. In the Fhinelander case a commission of inquiry was, instituted as to the sanity of the defendant. That commission-reported a disagreement. Two of the commissioners were in favor of reporting that the prisoner was insane, and one commissioner reported that he was sane. The court rejected the-report of the two commissioners, and affirmed the report of’ the single commissioner, that the prisoner was sane, and, after-the prisoner was thereupon determined sane and able to go to:, trial, he was then admitted to bail, because he was determined a sane -person. 1
In the case of Field, he. has never plead to the indictment. ■Hewas not admitted to> bail; but, on his plea of insanity, he -was sent to. an insane asylum at Buffalo, and it vyas after -the certification from that insane- asylum that lie was well and -cured that-he was admitted to hail; so that neither the Rkbaedcmder case nor the Field case has any. application to this case whatever. .
The only other case in America reported, that would at all have. any application, is a case reported in the- Court of Appeals in Texas, where it was. held that a person accused of •crime, and who plead- not guilty, and who put in the additierial plea that he was insane at the time of the commission of the • act, notwithstanding the probability that he might be acquitted on the ground of insanity, that that plea would not oper- ; até as a cause against liis being admitted to bail pending that ’.trial. That case has no application, because this case may be •distinguished from it in this way: This defendant pleads present insanity, while the defendant in the Texas case plead ■insanity at the time of the commission of the crime. Therefore, the ruling of the court must be without -tlié light of ’. judicial precedent, and must be founded upon reason and the principle ‘involved. •
It being discretionary witli the court to admit to bail in • any case of felony, unless that discretion be abused it must .stand as the ruling of the court having jurisdiction to try.the •case: I refuse to. admit this prisoner to bail at this-time, for ■the reason- that he has affirmed to this.court that he is insane; :and it would be a - most dangerous precedent to establish to .■admit a man to bail who says that he is insane, through the. lipsOf counsel, and who, if if should be finally adjudged that he is insane, would" haveto be immured in a place of safety. ’It- -would be, to a great extent, a wrong, not only to this -defendant, but a probable áhd impending danger to the-safety •of the eotnmunity, -and until this issue be tried and determined I shall not admit this defendant to bail.
-A -further view -may :be taken of it, though not the controlling one, that prompts me to render this decision, and that is, that the bond presented is not, in my opinion, of a sufficient character to warrant me in accepting it. I consider that a man whose property is mortgaged so heavily as this man’s property is may place the value of his property at figures away beyond what, in reason, any one would expect it to bring at a forced sale.; and his valuation is not, in my opinion, the true valuation of that property. The .valuation of property in the city of Hew York, and’in any other place in this state, is what it will bring upon a forced sale, and no more. Any other valuation is a special or fictitious valuation; and I consider that property located in the place where this man’s property is located, and where such ■ heavy mortgages are upon it, taking the character of the property into consideration, size, dimensions and location, is not worth anything like what the proposed surety characterizes it as being worth, and that it is not of • that value.
I would, therefore, even on the second ground, refuse to accept this bond as wholly insufficient, and for that reason the proposed bail is not accepted. On Friday morning, as originally directed by the court, the issue of this defendant’s sanity will be tried. ’
Motion denied.