Ex Parte McAdams v. State

WILLOUGHBY, J. The appellants, Albert McAdams and Matilda Sanders were in jail in Perry county, Indiana, under a charge of murder in the first degree, preferred against them jointly by the grand jury of said Perry county. They filed their verified petition under §2188 Burns 1926, §2025 Burns 1914, Acts 1905 p. 584, to be let to bail. A writ of habeas corpus was duly issued under said petition and the sheriff made his return showing service of such writ and bringing the said petitioners, Albert McAdams and Matilda Sanders before the Perry Circuit Court, and the judge thereof in vacation, on July 7, 1924, whereupon on said day a hearing was had on said petition and the court rendered judgment denying petitioners the right to bail and remanding them to the custody of the sheriff to be confined in the Perry county jail to await trial. On the same day of the hearing and judgment the petitioners filed their motion for a new trial, which being overruled, appellants appealed and the ruling of said court in overruling said motion is assigned as error. *186 *185 The only question presented by appellants’ brief is the *186 sufficiency of the evidence to sustain the finding of the court. Appellants complain that the court erred in admitting certain testimony, but appellants do not point out any place in their brief where these alleged errors may be found in the record. The brief fails to state what objection or objections, if any, were made to such testimony. Such questions are therefore waived. Gray v. McLaughlin (1921), 191 Ind. 190; Dampier v. State (1924), 194 Ind. 646, 144 N. E. 241; McCrocklin v. State (1920), 189 Ind. 254. Did the evidence sustain the finding of the trial court ? Section 17 of the Bill of Rights, §69 Burns 1926, §62 . Burns 1914, provides that, “Offenses other than murder and treason, shall be bailable by sufficient sureties. Murder and treason shall not be bailable when the proof is evident or the presumption strong.” On application for bail by; one charged with murder, the indictment stands with all its presumptions in favor of its truth until its force is broken by a showing that the grand jury acted on insufficient evidence and the burden is on the accused to show that the proof of guilt is not evident and the presumption of guilt not strong. State v. Hedges (1912), 177 Ind. 589, 590; Ex parte Heffren (1866), 27 Ind. 87; Ex parte Jones (1876), 55 Ind. 176; Ex parte Kendall (1885), 100 Ind. 599; Ex parte Richards (1885), 102 Ind. 260. The rule is that the applicant must introduce the evidence of witnesses indicated by the indictment, and he must also introduce such witnesses as the state indicates it does rely on. State v. Hedges, supra. In appellant’s .brief it is stated that “upon the trial of the cause attorneys for the petitioners called all witnesses for the state whose names were on the indictment, with the exception of one who was not present.” Why this witness was not present appellants do not inform us. *187 On appeals of this kind the Supreme Court will weigh the evidence and pass on it as a trial court. Brown v. State (1897), 147 Ind. 28; Ex parte Walton (1881), 79 Ind. 600; Ex parte Kendall, supra; State v. Hedges, supra. It being the duty of this court to weigh the evidence and pass upon it as a trial court, we have carefully examined the evidence as set out in the bill of exceptions and after such examination, we do not feel justified in disturbing the finding and judgment of the trial court refusing to let appellants to bail. We do not deem it proper to set out the evidence in this opinion for the reason that the case is yet to be tried upon its merits. Ex parte Richards, supra; Ex parte Sutherlin (1877), 56 Ind. 596. Judgment affirmed.