Opinion
No. 29243.
December 15, 1930.
BAIL. Habeas corpus. In habeas corpus proceedings trial judge is trier of facts and passes on weight of testimony; judgment of trial court must be affirmed in habeas corpus cases if evidence is sufficient to sustain it; trial judge held justified in denying bail in murder case, on ground circumstances and incriminating statements would be sufficient to sustain conviction.
In habeas corpus proceeding the trial judge is the trier of the facts and passes upon the weight and worth of the testimony, and if the evidence is sufficient to sustain his judgment the Supreme Court must affirm the case. The evidence considered in this case sufficient to justify the judge in denying bail.
APPEAL from circuit court of Quitman county; HON.W.A. ALCORN, Judge.
Stone Stone, of Coffeeville, Gore Gore, and A.A. Pogue, all of Marks, and Creekmore Creekmore, of Jackson, for appellant.
Leaving out all consideration of the fact that this man has been in jail nearly three years, has averaged more than one trial a year, on the cold, hard facts of the testimony when properly considered this is not a case that calls for the denial of bond.
Here is a case of murder admittedly based mainly on statements attributed to Ellerson Cofer by the witness or witnesses. The alleged incriminating statements are based almost entirely on the testimony of one witness, Johnnie Kehoe.
Johnnie Kehoe, the basis of this prosecution, is impeached by about ten or twelve witnesses from all walks of life in Yalobusha county, officers, neighbors, business men, each one of whom testifies positively that Kehoe's general reputation in the community where he lives is bad concerning the truth and veracity.
Even if a court had discretion in this matter, the refusal to grant bail in this case would be such abuse of discretion as to call for a reversal.
The decision of a circuit judge is subject to reversal by the court even where the circuit judge has heard the witnesses and has observed their demeanor on the stand.
Parker v. Tullos, 150 Miss. 680.
W.A. Shipman, Assistant Attorney-General, for the state.
The evidence shows that the court below in the exercise of a sound discretion vested in it by law committed no error in refusing the appellant's application for bail on the habeas corpus hearing.
The finding of the court below is equivalent to the verdict of a jury and is to be so considered by the appellate court, and the same principles of law applied in such case as are applicable to findings of fact by chancellors and judges generally as triers of the facts.
Street v. State, 43 Miss. 1; Ex Parte Pattison v. State, 56 Miss. 161.
This is an appeal from a judgment denying bail to the appellant. Ellerson Cofer was indicted for the murder of J.H., or Jahue, Pruitt; he has been twice convicted by a jury of the county, each of the convictions being reversed for certain errors not going to the sufficiency of the evidence. The first case is reported in 152 Miss. 761, 118 So. 613, and the second in 130 So. 511. In each of the reported cases it is stated, in substance, that outside of incriminating statements alleged to have been made by the appellant and his alleged conspirators the testimony was largely circumstantial. The incriminating statements proven in the record, if believed, are very damaging to the appellant.
We deem it improper and unnecessary to set out these statements, as the case must be tried again. We have examined the evidence in the record which, on this appeal, is submitted on the same evidence contained in the record the court passed on in 130 So. 511, barring the evidence improperly admitted as pointed out in the opinion in that case. The trial judge who had tried the cause and was familiar with the evidence adjudged it sufficient to deny bail. It appears to us that if the circumstances and incriminating statements, which are admissible, are believed to be true beyond a reasonable doubt, they are sufficient to sustain a conviction. In habeas corpus proceedings the judge is trier of the facts and passes upon the weight and worth of the testimony, and if the evidence is sufficient to sustain his judgment the Supreme Court must affirm the case. We find the evidence sufficient to sustain the judge's finding of fact, and find no error of law for the reason, if for no other, that the agreement submitted the case to the judge below as contained in the record. The hearing and denial of bail were subsequent to the reversal of the last cause, and there is nothing to show that the judge did not follow the law as laid down in the former opinion. The judgment of the court below must therefore be affirmed.
Affirmed.