This appeal is prosecuted by the state, under the provisions of section 6245 of the Code, from an order of the judge of the city court of Bessemer, fixing the petitioner's bail in the sum of $1,000 in a habeas corpus proceeding. The case is submitted on a motion to strike the appeal, and on the merits.
The motion to strike is not well taken, and is overruled, as the appeal is shown to have been taken within the time allowed by statute. — Code, § 6247.
The evidence, without conflict, showed a homicide resulting from an assault made on the defendant by the deceased with a stick or piece of wood. The. evidence is in conflict as to whether or not, after the parties had grappled, the deceased undertook to draw a weapon before he was shot and killed by the defendant. Under such a conflict in the evidence as shown by the record, it cannot be said to clearly appear that the primary court erred in its judgment admitting the defendant, to bail. For reasons that are obvious, we abstain from entering into a discussion of the tendencies of the evidence, or expressing any opinion with reference thereto that might affect the trial of the case on its merits.
The rule is fixed and has become the established lavr in this state that the judgment of the primary tribunal having the witnesses before it, and possessing all the advantage thus given for arriving at a Just conclusion, will not be disturbed when there is a- conflict in the evidence showing guilt, unless it be made clear that the primary tribunal was in error in the judgment rendered. — Butler v. State, 1 Ala. App. 265, 56 South. 20; State v. Lacy, 158 Ala. 16, 48 South. 343; Ex parte *274Sloane, 95 Ala. 22, 11 South. 14; Ex parte McAnnally, 53 Ala. 498, 25 Am. Rep. 646; Ex parte Nettles, 58 Ala. 275.
We are not prepared to say, acting under the rule governing a revisory court, after considering all of the evidence, that it is clear that the judge erred in the order made admitting the defendant to bail; and the judgment of the primary court will be affirmed.
Affirmed.