Before a person accused of a criminal offense may be denied bail the offense charged must be a capital offense, and the evidence must be so strong and clear as to lead a well guarded and dispassionate judgment to the conclusion that the offense has been committed, that accused is the guilty agent, and that upon the trial of the cause the jury will probably impose capital punishment. Constitution 1901, Sec. 16; Strickland v. State, 257 Ala. 585, 586, 60 So.2d 354, 355; Holman v. Williams, 256 Ala. 157, 53 So.2d 751; Ex parte McAnally, 53 Ala. 495; Smith v. Bridges, 38 Ala. App. 666, 92 So.2d 60; Anchrum v. State, 38 Ala. App. 521, 89 So.2d 225; Bradford v. State, 37 Ala. App. 483, 70 So.2d 816; Higginbotham v. State, 37 Ala. App. 724, 68 So.2d 925; Colvin v. State, 36 Ala. App. 104, 53 So.2d 99; Pair v. State, 32 Ala. App. 90, 22 So.2d 100; Id., 246 Ala. 672, 22 So.2d 101. John Patterson, Atty. Gen., and Robt. C. Dillon, Asst. Atty. Gen., for the State.
Nix, a Negro, charged with rape of the wife of his nephew, has appealed (Code 1940, T. 15, § 369) from an order of the Probate Judge refusing him bail. Considering the record and § 16 of the Constitution as applied in Alexander v. State, Ala.App., 96 So.2d 315; Jordan v. State, 38 Ala. App. 674, 92 So.2d 433; Smith v. Bridges, 38 Ala. App. 666, 92 So.2d 60; Anchrum v. State, 38 Ala. App. 521, 89 So.2d 225; McDoniell v. State, 37 Ala. App. 727, 68 So.2d 925; Higginbotham v. State, 37 Ala. App. 724, 68 So.2d 925; Bradford v. State, 37 Ala. App. 483, 70 So.2d 816; Miles v. State, 36 Ala. App. 640, 61 So.2d 866; Easley v. State, 36 Ala. App. 541, 60 So.2d 479; Robinson v. State, 36 Ala. App. 528, 60 So.2d 302; and Colvin v. State, 36 Ala. App. 104, 53 So.2d 99, we conclude bail should have been allowed. Ante, p. 157.
He was denied bail by the Circuit Court of Washington County wherein had been delivered an indictment accusing him of murder in the first degree. We have reviewed the record and the evidence on the hearing below en banc, and on authority of Colvin v. State, 36 Ala. App. 104, 53 So.2d 99, and Smith v. Bridges, 1957, ante, p. 666, 92 So.2d 60, reverse the judgment and decree below. It is ordered that appellant be admitted to bail upon recognizance in the amount of $5,000 upon sureties and in form to be approved by the Circuit Judge below or by the Sheriff of Washington County conformably with Code 1940, Title 15, Section 194, as amended.