STATE v. McNUTT, 26 Ala. App. 410 (1935)

STATE v. McNUTT, 26 Ala. App. 410 (1935)
161 So. 263


8 Div. 183.Court of Appeals of Alabama.
April 30, 1935.Page 411

Appeal from Morgan County Court; Seybourn H. Lynne, Judge.

George McNutt was indicted for the offense of murder in the first degree. From an order on petition for habeas corpus granting defendant bail, the State appeals.


A. A. Carmichael, Atty. Gen., for the State.

S. A. Lynne, of Decatur, for appellee.

BRICKEN, Presiding Judge.

This appeal is by the state, under section 3238 of the Code 1923, as amended by Gen. Acts 1927, p. 76.

The judge of the Morgan county court had the authority to issue the writ of habeas corpus, and to hear and determine the matters presented by the petition therefor. Local Acts 1919, ? 20, p. 198, amended by Local Acts 1931, ?? 20, 23, p. 144; Pugh v. Pugh, 21 Ala. App. 650, 111 So. 644.

The petitioner, appellee here, was indicted by the grand jury for the offense of murder in the first degree. This charge being prima facie not bailable, petition for habeas corpus was made to the judge of said lower court, and from an order granting petitioner bail, the state, as hereinabove mentioned, through the solicitor took this appeal.

The only question presented on this appeal is whether the decision and finding of the judge who heard the petition and entered the order is contrary to the great weight and preponderance of the evidence. We, of course, shall pretermit a discussion of the evidence for obvious reasons, and in reviewing the finding of the primary tribunal, the conclusion of the judge below on the facts will have regard to the weight which should be accorded by the revising court to the finding of the trial judge, for the reason that the witnesses appeared before him in person, thus affording him the opportunity of seeing and hearing them and of observing their deportment and demeanor on the stand; and the rule is that, unless it appears that his conclusion on the facts is contrary to the great weight or preponderance of the evidence, such conclusion will not be disturbed. From a careful examination of the evidence here, we are not prepared to say that the conclusion reached by the judge below was erroneous, under the rule stated.

It follows that the order admitting petitioner to bail is affirmed.