Opinion
No. 34940.
February 9, 1942.
HABEAS CORPUS.
Where chancellor's holding that proof was neither evident nor presumption great of accused's guilt of murder charged in indictment and that he was, therefore, entitled to be released on bail, was not justified by evidence, and accused was not entitled to bail under facts disclosed, petition for habeas corpus should have been dismissed (Const. 1890, sec. 29).
APPEAL from the chancery court of Lafayette county, HON. L.A. SMITH, SR., Chancellor.
T.G. Abernethy, of Okolona, C. Bramlett Roberts, and C.A. Bratton, both of Oxford, for appellant.
There is but one question involved; that is, whether the proof is evident or the presumption great.
We respectfully call the court's attention to the fact that from the testimony given by all the witnesses present at the time McNeely met his death there is not any evidence in this record that McNeely was at any time the aggressor. After Vinson pulled McNeely from the automobile, and while they were locked in combat, Vinson cut McNeely with a knife about the face. McNeely, freeing himself, began running, and, according to the testimony of the witnesses, made a circle of about 40 yards, running away from Vinson. While McNeely was running away from Vinson, Vinson pulled a pistol from his pocket and shot McNeely twice.
It is significant that, while all of the disinterested witnesses were near Vinson and McNeely, none of them heard any threats by McNeely or heard any statement of his that he intended to return to the car for the purpose of procuring a weapon.
We submit that while McNeely was running away from Vinson, Vinson was not in any danger and he as a reasonably prudent man had no reason to apprehend death or great bodily harm at the hands of McNeely.
A prisoner, if indicted for capital offense when proof is evident or presumption great, should not be admitted to bail except under special and extraordinary circumstances or other causes making it reasonable that he should be bailed; but if the proof is not evident nor the presumption great he is entitled to bail as a matter of right.
Ex Parte Martin, 97 Miss. 569; Section 29 of the Mississippi Constitution of 1890.
J.W.T. Falkner, of Oxford, and T.E. Pegram, of Ripley, for appellee.
The defendant was indicted in the Circuit Court of Lafayette County at the September, 1941, term on a charge of murder, and on proper showing at said term the case was continued.
The chancellor heard the case on the pleadings and evidence and the only question before him was a question of fact, and the only question now before this court is whether or not the chancellor abused his discretion in finding, on the facts, that the relator was entitled to bail.
The deceased started the difficulty and the proof seems to disclose that there was never any abandonment thereof by either party until the shots resulting in McNeely's death actually took place. When the deceased ran, saying to Vinson that he was going to his car and when he got there he would fix Vinson, that was no abandonment of the fight under well settled principles of law.
The only authority (aside from the constitutional provision) cited by appellant is Ex Parte Martin, 97 Miss. 569. That opinion is short and cites Ex Parte Bridewell, 57 Miss. 39, and Wray's case, 30 Miss. 673. The substance of those three decisions is that if the trial judge reasonably entertained a well founded doubt (of guilt of murder) then the proof is not evident nor the presumption great and in such case bail must be granted.
Argued orally by C.A. Bratton, for appellant, and by J.W.T. Falkner, for appellee.
The petitioner, Adam Vinson, is charged in an indictment with the murder of David McNeely, and was confined in the jail of Lafayette County until the hearing was had before the chancellor on his petition for a writ of habeas corpus, when he was allowed bail in the sum of $5000. The granting of bail was based upon a transcript of the testimony taken at a preliminary hearing before a justice of the peace, who had remanded the accused to jail without bail before the return of the indictment by the grand jury. Section 29 of the Constitution of Mississippi provides that, "Excessive bail shall not be required, and all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great."
The chancellor held that the proof was neither evident nor the presumption great of the guilt of the accused of the crime of murder. After a careful examination and study of the record before us we are unable to agree with this view. Since the case must be tried by a jury on the merits, we deem it both unnecessary and improper to set forth the facts and comment upon the reasonable inferences arising therefrom, upon which we have reached our conclusion. It is sufficient to say that we are of the opinion that the petitioner was not entitled to bail under the facts disclosed, and that bail should have been denied and the petition dismissed; and it is so ordered.
Reversed and remanded.