State v. Flood

¶1(dissenting).

¶2The precise question in this case is whether those charged with offenses which were formerly punishable by death are to be admitted to bail since Furman v. Geor*708gia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), declared the death penalty unconstitutional. The majority approaches this problem as though it were res nova, a problem suddenly created in every state in this country because the Supreme Court of the United States has stricken down the death penalty. As a matter of fact, in a very cursory examination I find that the question has been presented many times beginning as early as 1865, and that the answer has been uniform except in one recent case.1

¶3Our Louisiana Constitution provides that all persons shall be bailable except “ … Persons charged with a capital offense, where the proof is evident or the presumption great”. La.Const. of 1921, Art. I, Sec. 12. (Emphasis supplied.) Our Code of Criminal Procedure Article 933 defines “capital offense” as “an offense that may be punished by death”. Moreover, if we did not have a definition in our Code, we would be required to look for a definition in common law and its source. “Capital offense” apparently has had one meaning and one meaning only in England and in the United States. Bacon said that capital punishment was “That which affects life”. Over the years in various editions of Webster’s and The Century dictionaries, quotations from Spencer, Milton, Swift, and Macaulay have been used to illustrate that “capital punishment” means the forfeiture of head or life, punishment by death. The Random House Dictionary of the English Language (1967) says a capital crime is punishable by death. The several editions of Black’s Law Dictionary define capital crime as one punishable with death, and give numerous citations from jurisdictions throughout this country. Bouvier’s Law Dictionary says a capital crime is “one for which the punishment of death is inflicted”. See also Words and Phrases, “Capital Crime or Offense”.

¶4The jurisprudence is replete with the definition of “capital offense”, and it is undeviating. Therefore, under the specific legislative definition in Louisiana as well as under the consistent definition in statutes and jurisprudence of other states, a “capital offense” is one punishable by death.

¶5If there are no more offenses punishable by death in Louisiana because of the United States Supreme Court’s pronouncements, there are no more capital offenses, and our constitutional limitation upon the right to bail in capital offense cases is without effect. Therefore all persons charged with crimes are bailable, subject to the Code criteria for fixing bail. This *710conclusion can be documented with a long history of jurisprudence.

¶6In In Re Charles A. Perry, 19 Wis. 676 (1865), it was said: “The court are of opinion that since the abolition of capital punishment in this state, persons charged with murder are in all cases bailable.” 2

¶7In State v. Johnston, 83 Wash. 1, 144 P. 944 (1914), it was held that since capital punishment was abolished by that state in 1913, the 12 challenges previously afforded in prosecutions for capital offenses were no longer available, and that the provisions for six peremptory challenges in non-capital offenses should be applied in a murder prosecution.3

¶8Ex Parte Ball, 106 Kan. 536, 188 P. 424 (1920), held that when the Constitution of that state (like ours) made all offenses bailable except capital offenses and the legislature declared that murder could no longer be punished by death, murder became a bailable offense.

¶9For other cases with similar holdings, see In Re Welisch, 18 Ariz. 517, 163 P. 264 (1917); In Re Wood, 18 Ariz. 527, 163 P.268 (1917); City of Sioux Falls v. Marshall, 48 S.D. 378, 204 N.W. 999 (1925); State v. Pett, 253 Minn. 429, 92 N.W.2d 205 (1958); see also Taglianetti v. Fontaine, 105 R.I. 596, 253 A.2d 609 (1969).

¶10It can be seen from a reading of these cases that the abolition of capital punishment is not new in some jurisdictions within this country. It becomes more readily apparent that in these earlier cases where states have abolished capital punishment, these offenses, previously not bailable, became bailable upon the abolishing of the death penalty.

¶11The majority of the cases that have arisen recently have followed the uniform rule. In People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972), bail was not an issue. However, as an afterthought on rehearing the court said in dictum “… Subject to our future consideration of this issue in an appropriate proceeding, we hold that they [offenses formerly capital] remain as offenses for which bail should be denied ….” In People ex rel. Dunbar v. District Court, 500 P.2d 358 (Colo.Sup.Ct.1972), that court, without looking to the vast authority throughout this country for an answer to this question, supported its decision with that meager gleaning from the California case.

¶12Courts of all other jurisdictions which have considered the impact of the new United States Supreme Court declaration hold that unless there is some saving pro*712vision in their Constitutions, the end of the death penalty tolls the end of the denial of hail. State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972); Ex Parte Contella (Tex.Cr.App.1972) 485 S.W.2d 910. See also Donaldson v. Sack, 265 So.2d 499 (Fla.Sup.Ct.1972), which held that since capital punishment hád been abolished, the provisions applying only to capital offenses for manner of indictment, the number of jurors required to constitute a jury, speedy trial, and jurisdiction were now without application. The Florida court held, however, that since the Florida Constitution Article I, Section 14, states that an offense punishable by life imprisonment is non-bailable when the proof of guilt is evident or the presumption great, the abolition of capital punishment did not affect that exception to right to bail.

¶13I cannot find any justification for the holding of the majority in this case and in the companion case, State v. Holmes, No. 52812 on our docket, 263 La. 685, 269 So.2d 207, this day decided, in which I also dissent. The former provisions which specifically pertain to capital offenses, whether they benefit the State or the defendant, are stricken with nullity since there are no longer capital offenses. To reach any other conclusion usurps the function delegated in this particular instance to the legislators in combination with the people for legislative and constitutional reform.

¶14I respectfully dissent.