Opinion
6 Div. 530.
August 26, 1939.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Proceeding in habeas corpus to fix bail by W. C. (alias Bill) Gunter against the State of Alabama. From an order or judgment fixing the amount of bail, petitioner appeals.
Affirmed.
J. Howard Perdue, Jr., of Birmingham, for appellant.
In determining the amount of bail to be demanded the court should fix such an amount as is deemed sufficient to secure the presence of the accused at the trial, and in doing so it should take into consideration the pecuniary ability of petitioner. Under the circumstances disclosed and the fact that petitioner is practically without means, the amount fixed as bail is excessive. Constitution 1901, § 16; Ex parte Banks, 28 Ala. 89; Ex parte Hammock, 78 Ala. 414; Glenn v. State, 27 Ala. App. 102, 166 So. 437; Ex parte Ousley, 22 Ala. App. 619, 118 So. 675.
Thos. S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.
On application of bail by a prisoner shown to be under indictment, production of indictment casts upon the petitioner the burden of introducing exculpatory evidence, and he is presumed to be guilty of the charge in the highest degree, and this presumption must be overcome by proof. Ex parte Hammock, 78 Ala. 414; Ex parte Vaughan, 44 Ala. 417; Ex parte Carson, 17 Ala. App. 345, 85 So. 827; Ex parte Rhear, 77 Ala. 92. The criminal character of petitioner and former breaking of jail are circumstances to be considered in fixing the amount of bail. 6 Am.Jur. pp. 75, 76, §§ 65-67. Where the evidence on the application is conflicting and the trial judge has the witnesses before him with opportunity to determine their credibility, and no abuse of his discretion being shown, his conclusion should not be disturbed. Ex parte Mancill, 15 Ala. App. 421, 73 So. 756; Ex parte Olive, 17 Ala. App. 329, 85 So. 37; Ex parte Thompson, 24 Ala. App. 213, 132 So. 865; 6 C.J. 965; 6 Am.Jur. (Bail), § 52; State v. Stallings, 26 Ala. App. 576, 164 So. 119; State v. Wright, 23 Ala. App. 339, 125 So. 208; State v. Cauthen, 18 Ala. App. 75, 88 So. 63; Ex parte McCrary, 22 Ala. 65.
The record discloses that at the July 1939 Term of the Jefferson Circuit Court, the grand jury found and returned into open court two indictments against this petitioner, appellant, each of said indictments charged him with the offense of burglary.
Acting upon the provisions of Section 3364 of the Code 1923, the judge indorsed upon one of the indictments the following, towit: "Bail fixed at ten thousand dollars, J. Q. Smith, Judge."
Being unable to make such bond, and insisting the amount fixed was grossly excessive, the defendant, on the 25th day of July, 1939, flied a petition in the nature of habeas corpus seeking the reduction of the amount of bail. This petition was heard and determined by the Honorable Richard V. Evans, Judge, on July 27, 1939, who entered the following order, towit:
"Judge's Order
"This cause coming on to be heard on petition herein and written return by Sheriff made together with copy of indictment and after hearing evidence due consideration hereof, the amount of the bail is reduced to and fixed at the sum of six thousand dollars ($6000.00).
"Dated this July 27/39.
"Richard V. Evans, Judge."
From the foregoing order and judgment this appeal was taken and it is here insisted that amount of bail fixed therein is excessive and appellant prays that this court will take jurisdiction of this matter and allow petitioner to make a reasonable bond, etc.
This court, sitting en banc, has read and considered the record and also the briefs of respective counsel and has reached the conclusion that the order, supra, made by the Honorable Richard V. Evans, should not be disturbed.
There is no necessity to restate the principles of law involved in a proceeding of this character. They are well understood and have been definitely settled for many years. We likewise refrain from setting out the evidence adduced upon the hearing below. We do conclude, however, that the unsavory character of petitioner, as shown by the undisputed evidence, was ample to justify the trial judge in making and entering the order fixing petitioner's bail at six thousand dollars. In this connection the trial judge acted within the scope of discretion with which he was vested and this court will not disturb or modify that order. Such order and judgment is in all respects hereby affirmed.
Writ denied.
Affirmed.