This is an appeal by the petitioner from an order of the Circuit Judge denying his petition for habeas corpus in an effort to be allowed bail.
Appellant was and is being held in jail upon an indictment charging him with the offense of murder in the first degree. The presumption that obtains, upon his application, as here, for bail is too well understood to require restatement.
It is sufficient that we say that the evidence offered by petitioner to overcome this presumption, and that offered by the State in rebuttal is in sharp and irreconcilable conflict.
The rule by which the Circuit Judge, to whom the petition was presented below, is and was governed — and with which rule we have no reason to doubt his familiarity, nor conformance — is "to refuse bail in a case of malicious homicide, where the judge would sustain a capital conviction, pronounced by a jury, on evidence of guilt, such as that exhibited on the application for bail; and to allow bail, where the prosecutor's evidence was of less efficacy." Ex parte Nettles, 58 Ala. 268.
And, "when the question is presented to a revisory court [as here], much is due to the judgment of the primary tribunal. The witnesses are personally before it, and the examination is usually had near the scene of the alleged offense, and in the midst of the circumstances attending the transaction. In all investigations of criminal accusations, much depends on the manner in which the witnesses testify, the feeling of partiality or prejudice they may manifest, and their general demeanor. There the primary court has the opportunity of observing, and it should be clear that it has erred in its judgment, or a revisory court should abstain from interference." Ex parte Nettles, supra.
It being kept in mind that the instant application was made to the Judge of the Circuit Court — rather than to the Probate Judge — the opinion by Justice Stone in the case of Ex parte Weaver, 55 Ala. 250, is in every minute particular — save that here, the evidence for petitioner tended to show he acted in self-defense — rather than that he did not kill deceased — applicable to the question before us. We quote and adopt as our own its language — mutatis mutandis.
It follows, and it decides our case, to-wit:
"Stone, J. — The credibility of oral testimony depends in a large degree on the *Page 528 manner of the witness on the stand. Hence, in criminal prosecutions, it is the constitutional right of the accused 'to be confronted by witnesses against him.' The defendant, by the finding of a grand jury, stood charged with the crime of murder. The testimony before the judge of probate was, in form, positive. If true, deceased came to his death by a most atrocious murder, of which defendant was the perpetrator. Standing by itself, it makes a case of 'evident proof,' within the letter of the constitution, and which denies to defendant the privilege of bail. — See Constitution, declaration of rights, section 17. There was testimony, which, if believed, tended strongly to show that defendant could not have committed the homicide. This conflict of testimony rendered it necessary for the judge of probate to weigh the evidence. The witnesses testified before him. He had the means of observing the degree of intelligence, and the matter of careful regard for truth, shown by each witness, which are the sure foundations on which confidence rests. Aye, more; he could, and doubtless did, scrutinize the deportment of the witnesses — the facial expression, not susceptible of description by either tongue or pen, which, with many other ingredients, constitutes what we call manner. He refused bail; and there is not enough in the record to justify us in reversing his decision. — See Ex parte McAnally, 53 Ala. 495, (25 Am.Rep. 646).
"We do not wish, however, to prejudge the case, to the defendant's injury. When the testimony goes before a jury, that body will be aided and enlightened, as the judge of probate was, by the presence and personal examination of the witnesses. They will not be trammelled by the finding of the judge of probate, nor by the refusal of this court to reverse his decision. They try the facts anew, and should give due weight to all the facts and circumstances in the case. If, upon all the testimony, there be left a reasonable doubt of the defendant's guilt, he should have the benefit of it. All we intend to say is, that, in entire ignorance of the manner of the witnesses, and with no means of informing ourselves on this point, we refuse to reverse the finding of the judge of probate, and refuse to award a writ of habeas corpus."
The judgment is affirmed.
Affirmed.