This appeal is under the provisions of section 3238 of the Code 1923, as amended by the Act of the Legislature of 1927, pp. 76, 77, wherein it is provided that any party aggrieved by the judgment on the trial of a habeas corpus may appeal to the Supreme *Page 518 Court, or Court of Appeals and these courts shall consider the case on the record and the evidence as set forth, and, if the judgment of the trial court is correct, the case shall be affirmed, if erroneous, the appellate court shall render such judgment as the trial court should have rendered.
My associates are of the opinion that the judgment of the trial court, in this case, was correct, and have ordered an affirmance thereof which must prevail. However, I am so firmly convinced that the judgment from which this appeal was taken is erroneous, my brief views on the subject must be expressed.
As stated in the majority opinion, the petitioner was held under a charge of murder by virtue of an affidavit and warrant issued by a justice of the peace. The presumption therefore was that the petitioner was innocent, and this presumption prevailed until the state by its evidence showed that he was guilty. Notwithstanding this, the court, after hearing all the evidence, made the statement, "I don't think the defendant has made sufficient showing to allow him bail, I will deny the writ." This was error, as the burden under the law rested upon the state, and not upon the defendant, but the court held directly otherwise.
The prevailing rule in this state for many years has been, a person who is in custody under a charge of murder is entitled to bail as a matter of right, unless the proof is evident, or the presumption great, that he is guilty of murder in the first degree; and the rule extends further to the effect that bail should be allowed unless the judge would sustain a capital conviction by a jury under the evidence adduced upon the trial.
In this case the court not only misplaced the burden of proof, but in my opinion rendered an erroneous conclusion not warranted by any phase of the evidence. To my mind the unfortunate homicide was the result of passion suddenly engendered by the opprobrious words and belligerent conduct of the deceased. There is a total lack of any evidence showing or tending to show any premeditation or deliberation upon the part of petitioner in the taking of the life of deceased. Without dispute, the evidence shows that the party assembled in the home of petitioner where the killing occurred was a friendly one, with no bad feelings or enmity on the part of any of the participants. It was a drinking party unfortunately, and the evidence disclosed that the whisky was brought to petitioner's home by the deceased, and that he (the deceased) became suddenly angered or incensed, and that it was his conduct that suddenly precipitated the conflict resulting in his death. By no construction of the undisputed testimony can it be said that the proof is evident and the presumption great and that the death penalty should be inflicted, and certainly no lawful jury would impose this extreme penalty under this evidence. Nor could there be found any trial judge who would sustain the death penalty in a case of this character. For these reasons I am of the opinion that petitioner's request for bail should have been allowed, thus my dissent as aforesaid.