Appeal from denial of habeas corpus for bail.
Perdue was indicted for the capital offense of robbery. He alleged in his habeas corpus petition that the State's evidence was not enough to justify electrocution.
Petitioner's evidence sought to show alibi. The State adduced an eyewitness to the robbery of a filling station. This man said that two men, one of whom he identified as Perdue, perpetrated the crime.
This State's witness testified that Perdue's alleged accomplice backed up his menaces with a sawed-off shotgun. On cross it was brought out that no one was injured.
In robbery the larceny can come from actual violence or threats (vi et armis aut per minas). Undoubtedly, to some extent, the Legislature intended the death penalty for robbery to deter violence.
The threshold issue on this habeas corpus was under § 16 of the Constitution of 1901, i. e., whether or not the State's proof was "evident or the presumption great."
In murder, proof of the use of a deadly weapon permits an inference of malice aforethought. Here the deadly weapon was not fired.
After indictment there is an increment to burden assumed by the petitioner who seeks bail. Though he is presumed innocent, yet, in applying for bail, he must *Page 354 combat the likelihood of flight to avoid trial. Beddow v. State, 259 Ala. 651, 68 So.2d 503.
In the following recent cases, we denied review to the refusal of bail. Yet, in each case, the jury either acquitted or found a lesser degree: Livingston v. State, 40 Ala. App. 376, 116 So.2d 396; Ex parte McPhearson, 40 Ala. App. 168,109 So.2d 755; and Wilbanks v. State, 40 Ala. App. 682,122 So.2d 559.
We have carefully considered en banc the evidence and conclude that under the Colvin rule, i. e., bail must be allowed in capital cases "unless the evidence is clear and strong and would lead to a well guarded and dispassionate judgment reasonably compelling the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered," the appellant is entitled to bail. Colvin v. State, 36 Ala. App. 104, 53 So.2d 99.
The judgment and decree of the circuit court denying appellant bail is reversed, and it is hereby ordered that the appellant be released upon his furnishing bail in the amount of $10,000.00 to be approved by the Circuit Judge below, or by the Sheriff of Jefferson County in compliance with Section 194, Title 15, Code of Alabama 1940.
Reversed and remanded with directions.
PRICE, P. J., concurs in result.