(MERRIMON, C. J., dissented.)

(935) CLARK, J.

If the judge, upon the investigation of the evidence on a petition for habeas corpus, adjudges that there is or is not probable cause, and admits or refuses to admit to bail, no appeal or certiorari lies, either in favor of the State or the petitioner. Walton v. Gatlin, 60 N.C. 318; S. v. Miller, 97 N.C. 451. The quantum of evidence and the number of witnesses to be examined must necessarily be left also to the sound discretion of the judge who hears the writ, and his action in that regard cannot be reviewed. When, however, on the return of the writ, the judge declines to hear evidence because an indictment for a capital offense has been found against the petitioner, this presents a ruling of law which the petitioner is entitled to have reviewed by this Court. The statute nowhere provides for an appeal in such case, but the Constitution, Art. I, sec. 18, guarantees the writ of habeas corpus, and if such ruling has the effect to deny its efficacy to any one who, on investigation of the evidence, might have been entitled to bail, this Court, by virtue of the Constitution, Art. IV, sec. 8, has "the power to issue any remedial writ necessary to give it a general supervision and control over the proceedings of the inferior courts." It appearing that, upon the return of the writ, the judge declined to hear evidence or investigate the charge, the writ of certiorari should issue, that we may be further advised concerning the matter. Walton v. Gatlin, supra; Biggs, ex parte, 64 N.C. 202; S. v. Jefferson, 66 N.C. 309.

A certified transcript of the record being in court, by consent it is docketed and taken as a return to the certiorari. From such transcript it appears that, on the return of the writ, the judge declined to hear any testimony, upon the ground that the true bill was probable cause. The question, then, is whether the finding of a true bill either deprived the judge of the power to investigate the evidence and admit the prisoner to bail, or was so conclusive of the fact that there was probable cause as to deprive a citizen of the right to have the cause of his detention, and his right to be admitted to bail, inquired into by (936) virtue of this great writ of right. We think not. The grand jury, it must be remembered, hear the State's witnesses only, and only such of them as may be sent before them by the solicitor, or by order of the court. The Code, sec. 1741. It may happen, and often does, that, upon hearing the State's evidence only, the conviction is ample to justify the grand jury in finding a true bill for murder; yet, upon an examination of the witnesses for both sides by a judge, upon the writ of habeas corpus, it may appear that there was no probable cause as to the charge of murder, but that it is a case of manslaughter, and, therefore, bailable, or excusable homicide, or it may be that there is no probable cause, upon the whole evidence, that the defendant was the guilty party. The defendant should not be deprived of this right guaranteed to him by the Constitution, and be compelled to lie in jail, probably for months, when an intelligent judge, upon hearing the whole evidence, the benefit of which is denied to a grand jury, might properly adjudge that there was no probable cause as to the capital offense, at least, and admit the defendant to bail. we are aware that, in S. v. Mills, 13 N.C. 420, a most eminent judge has indicated arguendo an opinion that, after a true bill is found for a capital offense, the petitioner is debarred the right to have his claim to be admitted to bail inquired into upon a writ of habeas corpus. But that decision was made under the former Constitution and statutes. Under the former statute, when it appeared upon the return of the writ that the prisoner was in jail upon process for trial upon a capital offense, the prisoner could not be bailed. Revised Statute, ch. 55, sec. 3; Revised Code, ch. 55, sec. 3. Now, however, The Code, sec. 1161, provides that any Justice of the Supreme Court or judge of the Superior or Criminal Court "shall have the power to bail persons committed to jail charged with crime in all cases." This, we take it, means that any person charged (but not convicted) of any crime whatever may be admitted to bail if the judge, upon hearing the testimony upon a writ (937) of habeas corpus, adjudges that, upon the facts developed, the petitioner is entitled to be released on bail. Sections 937 and 1624 (2) provide that if, upon return of the writ, it appear that the petitioner is in custody by virtue of a judgment, he shall not be bailed. Section 1644 provides that, upon the return of the writ, the judge "shall examine into the facts contained in the return and into the cause of the restraint," and "hear the allegations and proofs on both sides, and do what to justice shall appertain in delivering, bailing or remanding the party." In treating the finding of the grand jury as conclusive of probable cause, and refusing to hear any evidence or proof, we think the judge denied the prisoner the remedy he was entitled to have by virtue of this last section. The true bill was no proof of the charge, nor did the judge hear any proof for the petitioner at all, though offered.

The judge, having refused to hear the evidence and to pass upon the right of the prisoner to be admitted to bail, committed error, and it must be so adjudged. Lynch v. People, 38 Ill. 494; Comrs. v. Rutherford, 5 Rand (Va.), 646; Lumm v. State, 3 Port. (Ind.), 293; People v. Cole, 6 Park Cr. Rep., 695; 2 Hawks. P. C., ch. 15, sec. 79; Hurd Habeas Corpus, 439; Church Habeas Corpus, 540. There are other cases, as where the prisoner is so sick as to be in danger of his life, or the prosecution is unreasonably delayed, and the like, in which the prisoner has been let to bail after indictment found. Kirk's case, 5 Mod., 454; U.S. v. Jones, 3 Wn. C. C. Rep., 224; Bacon's Abr. Bail, Cr. Cas. D; Hurd Habeas Corpus, 445. In a recent historical case, Jefferson Davis, after an indictment found for treason, was admitted to bail by the United States Court. But these and like cases stand on a different footing from the present application, and are only authority that a habeas corpus may lie after indictment found for a capital (938) offense. A statutory remedy is now given, where the trial is unreasonably delayed, by The Code, sec. 1658.

Where the charge is of a capital felony, which is prima facie not bailable, the courts are very slow to admit to bail, for there is shrewd authority that "all that a man hath will he give in exchange for his life," and after indictment found it is only in a clear case and with great caution that a judge will admit to bail, for, while the indictment is no presumption of guilt on the trial before the petit jury, it is otherwise in the application for bail. The presumption then is in favor of the correctness of the action of the grand jury, and it may be that testimony was before them which is not produced before the judge. We merely decide that the finding of the true bill does not preclude the application. Of course, after indictment found, the judge cannot absolutely discharge the prisoner in any case, however clear a case of innocence may be made out, but must require his appearance at the next term of court.

The Code, sec. 1626, gives the prisoner the right to apply for the writ to any of the Justices of the Supreme Court, or any judge of the Superior Court. Section 1626 (4) requires an averment in the petition that the legality of the restraint has not been already adjudged upon a prior writ of habeas corpus. As this judgment annuls and sets aside the ruling of the judge below, there is now no former judgment which passes upon the petitioner's right. He can, therefore, apply, de novo, to any one of the judges, as authorized by the statute, to whom he could have applied in the first instance. This is not an appeal from a judge, as judge holding the courts of any district, nor is it a case where the error must be corrected by the individual judge who committed it. Therefore, no procedendo issues. The judgment below denying the right to have witnesses examined is overruled, and the proceedings are remanded to the Superior Court of Durham County, to the end that the petitioner have leave to renew his application, if so advised. There being no prior adjudication preventing a new application (939) by the petitioner, we cannot interfere with his statutory right to select the judge to whom he shall apply.

The value and efficacy of this writ depends largely upon the promptness with which it is heard. It has, therefore, been suggested that one reason why an appeal or certiorari should not lie is because of the necessary delay which would be caused thereby. There might be some force in the suggestion if the appeal or certiorari were granted on behalf of the State and the petitioner should lie in jail pending the hearing here. This can hardly be urged, however, when the effect of the decision here may be to grant the prisoner the privilege of bail, of which, otherwise, he would be entirely deprived. Besides, the court has the power to advance such cause and hear it at any time out of its order. Rule 13.

The statute (Laws 1887, ch. 41), which is also Rule 48 of this Court, requires the clerk of this Court, on the first monday in each month, to certify down all opinions which shall have been on file ten days. We do not understand that this Court is thereby deprived of its power to have opinions, when it deems proper, certified down at an earlier date. On motion of petitioner's counsel, it is, therefore, ordered that the Clerk of this Court forthwith certify his opinion and decision to the Superior Court of Durham County.