Opinion
7 Div. 832.
January 18, 1945.
Appeal from Circuit Court, Etowah County; W.M. Rayburn, Judge.
Proceeding by Claudius Cochran, Jr. (alias Sonny) and Joe Paul Andrews (alias Joe Edley Paul) for habeas corpus to fix and allow bail on a charge of robbery. From an order or judgment denying relief, petitioners appeal.
Reversed and remanded.
John R. Robinson and Geo. C. Hawkins, both of Gadsden, for appellants.
The rule to be applied upon application for bail is whether a court would allow a verdict to stand fixing appellant's punishment at death. Applying the rule to this case, it was error for the court to deny bail. Ex parte Carson, 17 Ala. App. 345, 85 So. 827; Griswold v. State, ante, p. 583, 20 So.2d 54; Berry v. State, ante, p. 584, 20 So.2d 55.
Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.
Where hearing has been before the judge of a lower court, in whom is reposed sound discretion to admit to bail or not, the higher court will always presume that this discretion has been properly exercised. Ex parte McCrary, 22 Ala. 65; Ex parte Banks, 28 Ala. 28; Ex parte Weaver, 55 Ala. 250; Ex parte Warrick, 73 Ala. 57; Ex parte Nettles, 58 Ala. 268; Ex parte Thompson, 24 Ala. App. 213, 132 So. 865. The prisoner is presumed to be guilty in the highest degree of the offense charged, and it is incumbent on him to overcome this presumption with proof. State v. Lowe, 204 Ala. 288, 85 So. 707. Wherever the judge would sustain a capital conviction by a jury on the same evidence, bail should be refused. Ex parte McAnally, 53 Ala. 495, 25 Am.Rep. 646; Ex parte Brown, 65 Ala. 446; Ex parte Sloane, 95 Ala. 22, 11 So. 14.
It appears from the record that each of above-named appellants stands charged by affidavit with the offense of robbery. This proceeding, in habeas corpus, by both of them seeking bail pending an investigation by the grand jury, was heard and determined by the circuit judge, and from an adverse decision this appeal was taken.
This court has given careful and attentive consideration to the entire record, and of all the evidence, and under the oft-announced rule as to proceedings of this character, which will not here be reiterated, we are of the opinion that the relief prayed for should be granted. It follows that the order of the court denying each of the petitioners bail, separately and severally, is reversed and the cause remanded to the lower court and that the petitioners, each of them, be admitted to bail in such reasonable sum as will insure their separate appearance in court to answer any indictment that may result from the investigation of this case before the grand jury.
We refrain from reciting the facts of the case as disclosed by the record, as being of doubtful propriety. Under the authority of the cases of Griswold v. State, Ala.pp., 20 So.2d 54, and Berry v. State, Ala.App., 20 So.2d 55, and Ex parte Carson, 17 Ala. App. 345, 85 So. 827, the cause is reversed and remanded with instructions as above announced.
Ante, p. 583.
Ante, p. 584.
Reversed and remanded.