Opinion
7 Div. 773.
October 12, 1943.
Appeal from Circuit Court, Etowah County; J.H. Disque, Jr., Judge.
Petition of Thomas Collins Henson for habeas corpus to fix bail. From an order or judgment denying the petition, petitioner appeals.
Affirmed.
Robinson Parris and McCord McCord, all of Gadsden, for appellant.
Where the proof is not evident or the presumption great that accused is guilty of offense punishable capitally, he should be allowed bail. Ex parte Banks, 28 Ala. 89; Ex parte Bryant, 34 Ala. 270; Ex parte Acree, 63 Ala. 234; Ex parte Carson, 17 Ala. App. 345, 85 So. 827. A killing in sudden passion, excited by sufficient provocation and without malice is manslaughter. McBryde v. State, 156 Ala. 44, 47 So. 302; Martin v. State, 119 Ala. 1, 25 So. 255; Buffalow v. State, 219 Ala. 407, 122 So. 633; Stewart v. State, 78 Ala. 436.
Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.
One imprisoned under indictment charging murder in first degree is presumed guilty of the highest degree and to be entitled to bail as of right must overcome this presumption by proof. State v. Gilbert, 20 Ala. App. 357, 102 So. 155; Deaver v. State, 24 Ala. App. 377, 135 So. 604; State v. Lowe, 204 Ala. 288, 85 So. 707; Rogers v. State, 30 Ala. App. 226, 4 So.2d 266. Granting or refusing of bail in criminal case is matter resting in sound discretion of court, and appellate court will not interfere to control that discretion except where it has been exercised in an arbitrary, unjust and oppressive manner. Ex parte Nettles, 58 Ala. 268; Ex parte Allen, 55 Ala. 258; Ex parte Key, 5 Ala. App. 274, 59 So. 331; Ex parte Lawrence, 21 Ala. App. 537, 109 So. 615; 8 C.J.S., Bail, p. 96, § 48.
Petitioner, being confined in jail charged by two separate indictments with the offense of murder in the first degree, filed his petition of habeas corpus, seeking to be allowed bail. The petition was denied in the lower court, and from the order and judgment, pronounced and entered, he appealed to this court.
After a full, careful and attentive consideration of all the facts and circumstances disclosed by the record in this case, the court sitting en banc, we are of the opinion, and so hold, that under the prevailing and oft announced rule governing the questions presented, the order appealed from should not be disturbed.
As to the principal insistence of petitioner on this appeal, we may merely refer to the case of Daughdrill v. State, 113 Ala. 7, 21 So. 378, (11th headnote). See also page 32 of 113 Ala., 21 So. 378, of said opinion.
No elaboration is deemed necessary.
Affirmed.