In dissenting from the opinion of my associates I am impelled to state that in my firm judgment the evidence adduced upon the trial, of this proceeding, by which we are to be governed, falls far short of the inhibition provided by the Constitution of the State of Alabama, Article 1, Section 16. Said Section provides: "That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required."
The foregoing expression, "when the proof is evident or the presumption great" when applied to the offense with which petitioner is charged, i. e. murder in the first degree, necessarily means there must be evidence beyond a reasonable doubt (1) that the killing complained of was willfully done, (2) that it was done with malice aforethought, (3) that it was done with premeditation, and (4) with deliberation, and, of course, unlawfully done. To bring the case within this class of homicide, in my opinion it would be necessary to go outside of the evidence disclosed by this record. Said evidence in no manner discloses that the defendant had any motive for the killing. So far as this evidence goes the defendant and deceased were on friendly terms toward each other just prior to the fatal difficulty. No threats, or ill will is shown; and certainly, no testimony tending to show premeditation or deliberation. If either of the foregoing essential ingredients are lacking in the testimony, the offense could not be murder in the first degree, therefore the proof is not evident, or the presumption great, and the defendant, under the constitutional provision, supra, would be entitled to bail. This petitioner, nor any other person charged with crime, should be punished for the commission thereof, until after his conviction therefor, by a jury of his peers.
The homicide in this case was indeed a most unfortunate one. The respective characters of the two principals were in evidence. That for the petitioner, good without conflict; for the deceased, the evidence was to the contrary, this without dispute.
I do not accord to the order entered by the trial judge in this proceeding. It is difficult to understand how any person with *Page 529 a trained judicial mind could apprehend that any fair and impartial jury would ever under such evidence, as here adduced, inflict the death penalty, or where any fair and impartial trial judge would sustain a conviction for capital punishment, and unless this affirmatively appears the petitioner is under the fundamental law of this State entitled to bail.
It is apparent from the majority opinion (Per Curiam) that my associates predicated the conclusion therein announced mainly upon the rule, correctly stated in said opinion as follows: "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.' "
To apply said rule here, as being conclusive, I think is of very doubtful propriety, for the reason we are advised, in brief and by argument, that by consent of parties, the record of the testimony taken before the jury was submitted to the trial judge and upon which, solely, he based his order of denial of bail. There were no witnesses examined before the judge in this proceeding as a result of said agreement of parties. We are further directly informed that the jury, selected mutually by the State and defendant, who also saw the witnesses and observed their demeanor on the stand, after deliberating for many hours, failed to reach a verdict as to the guilt of the defendant for any degree of homicide, and a mistrial was accordingly entered by the trial judge, as the law provides. These facts clearly appear on this hearing, and in my opinion, as stated, renders very doubtful the propriety of predicating an affirmance here, upon said stated theory or rule, when as a matter of fact in this hearing below no witness was introduced by either side, and upon the very same evidence, arguments of counsel, and instructions of the court, the jury trying the case failed to find a verdict that the defendant was guilty, under this evidence, of any degree of homicide.
Bail should not be denial for the purpose of punishing a person charged with crime. Bail is exacted for the sole purpose of securing the attendance of the defendant at court at all times when his presence may be lawfully required, and his rendering himself in execution of any legal judgment that may be pronounced against him.
It is my opinion that the order of the trial judge denying bail to petitioner should be here reversed, and an order entered that said judge should set a reasonable and sufficient amount of bond, and give to petitioner the right to furnish a bail bond with good and sufficient sureties, as the law provides and requires.