Opinion
March 9, 1951.
D.M. Johnson, of Reynolds Johnson, Quincy, and Wilson L. Bailey, Blountstown, for petitioner.
J. Frank Adams, Asst. State Atty., Blountstown, for respondent.
On December 24, 1950, James R. Fields was shot to death in Calhoun County. An inquest was held, testimony was taken and Broward Larkin was charged with the murder. He was arrested and placed in jail in Leon County but was later transferred to the Gadsden County jail. Being unable to secure a prompt hearing for bail in the county where the crime was committed he applied to a Justice of this Court by habeas corpus for that purpose. His petition alleges that his custody is illegal, and prays that it be inquired into, that he be discharged or that he be given bail pending his appearance at the next term of the Circuit Court.
Such applications are governed by Section 9, Declaration of Rights, Constitution of Florida, F.S.A., which provides: "All persons shall be bailable by sufficient sureties, except for capital offences where the proof is evident or the presumption great."
Petitioner having been charged with a capital offense is entitled to a speedy hearing but the burden is on him to take the initiative and show from the evidence that the proof of his guilt is not "evident or the presumption great." The character and extent of the evidence may depend on the circumstances of the case but in order that it produce bail it must convince the court that the proof is not evident or the presumption great that accused is guilty of a capital offense. Such is the plain requirement of Section 9, Declaration of Rights. Ex parte Nathan, Fla., 50 So. 38.
On an application like this we are not concerned with whether or not the evidence is sufficient to establish guilt beyond a reasonable doubt but the point for determination is whether or not it reveals that degree of proof which convinces the judge that guilt is evident or the presumption of it great. If it establishes no more than a probability of guilt bail should be granted. Ex parte Tully, 70 Fla. 1, 66 So. 296. If the evidence is of such probative value that guilt is extremely doubtful or presumption vague, it fails of the test and bail should be granted.
The evidence presented in this case consisted of that taken at the coroner's inquest and a confession made by petitioner while he was in jail a few days after the murder was committed. Briefly summarized the evidence taken at the coroner's inquest shows that Fields was killed near Coon landing on the Chattahoochee River in Calhoun County about seven P.M. December 24, 1950, that no one was present at the killing but the deceased and his assailant, that he was shot at close range and from all indications died instantly. In his confession petitioner admits that he shot Fields at close range, that Fields had chased him for about a hundred and fifty yards, why he shot Fields he did not know but said he (Fields) was going to shoot me, he had his light on me and, said petitioner, "I felt that I was shooting in self defense." The petitioner said that he and Fields were good friends and that he deeply regretted shooting him.
I am convinced from this summary of the evidence that it meets the requirement of the Constitution, that the proof of petitioner's guilt is evident and the presumption great. His application for bail is not supported as the Constitution requires.
The petition for habeas corpus is accordingly denied.