Roan v. State

• Decision Date: 27 October 1931
• Docket Number: 7 Div. 851.
• Citation: 24 Ala.App. 517,137 So. 320
• Parties: ROAN v. STATE.
• Court: Alabama Court of Appeals

137 So. 320

24 Ala.App. 517

ROAN v. STATE.

7 Div. 851.

Court of Appeals of Alabama

October 27, 1931

Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.

Petition of Tom Roan for habeas corpus. From a judgment or order denying the writ, petitioner appeals.

Affirmed.

BRICKEN P.J., dissenting.

Haralson & Son, C.J. Scott, and C. A. Wolfes, all of Ft. Payne, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

SAMFORD J.

The petitioner was arrested and imprisoned on a warrant issued by a justice of the peace on a charge of murder in the first degree. This warrant was superseded and rendered functus officio by an indictment returned by the grand jury of the county charging petitioner with the same and identical offense. On motion of the solicitor, this indictment was quashed and a new indictment ordered by the circuit court, which included an order that the defendant be held without bail to await another indictment to be returned by the grand jury. Code 1923, § 4555.

The petitioner was therefore being held on an order of the circuit court and not on an indictment by the grand jury.

Under section 16 of the Constitution petitioner was entitled to bail in reasonable amount and by sufficient sureties, unless the proof is evident or the presumption great that the offense was murder in the first degree and might be punished capitally. Ex parte Nettles, 58 Ala. 268; Ex parte McAnally, 53 Ala. 495, 25 Am. Rep. 646.

The burden rested on the state to prove the crime, that it was of the highest degree, and to show such a state of facts that would convince the judge that upon final trial the judge would sustain a verdict pronouncing the defendant guilty and imposing the death penalty. Ex parte Lawrence, 21 Ala. App. 537, 109 So. 615.

As this cause must be tried in the circuit court, it would be improper for this court to enter into extended comment on the evidence unless such was found to be necessary to a decision. We therefore, confine ourselves to the statement of the rule adhered to both in this court and the Supreme Court that, where bail has been refused by the primary magistrate on oral evidence, the appellate court will not interfere, unless such denial appears from the record to have been manifestly erroneous. We do not so find it in this case. Ex parte Richardson, 96 Ala. 110, 11 So. 316; Ex parte Key, 5 Ala. App. 274, 59 So. 331.

The order denying the writ is affirmed.

Affirmed.

BRICKEN P.J. (dissenting).

This appeal is under the provisions of section 3238 of the Code 1923, as amended by the Act of the Legislature of 1927, pp. 76, 77, wherein it is provided that any party aggrieved by the judgment on the trial of a habeas corpus may appeal to the Supreme Court, or Court of Appeals and these courts shall consider the case on the record and the evidence as set forth, and, if the judgment of the trial court is correct, the case shall be affirmed, if erroneous, the appellate court shall render such judgment as the trial court should have rendered.

My associates are of the opinion that the judgment of the trial court, in this case, was correct, and have ordered an affirmance thereof which must prevail. However, I am so firmly convinced that the judgment from which this appeal was taken is erroneous, my brief views on the subject must be expressed.

As stated in...