Bishop v. Wilbanks

Beck, P. J. The petitioner in this case introduced numerous affidavits tending to show that he is not guilty of the crime charged. His own affidavit was also submitted, in which he denies that he is guilty of the offense alleged in the indictment. Many of the affidavits tend strongly to negative the idea that the petitioner committed the crime with which he is charged. Numerous affidavits were introduced by petitioner, supporting in material particulars his contention that he was not guilty of the offense charged, and that the two females who were witnesses for the State were women of bad character; and tending to show that they were willing, at the time that the crime of rape is said to have been committed, to have permitted any one of several men who were present, for a money consideration, to have sexual intercourse with them. If the evidence for petitioner is credible, the women were of bad character and freely jested with the men in the presence of others upon the subject of sexual intercourse, and indicated their readiness to participate with any man present in the act of sexual intercourse. It is unnecessary to set out in detail or in substance the contents of these affidavits. But the judge who presided at the hearing of this application for bail was the judge of the credibility of all the witnesses introduced; and it was within his province, after hearing the evidence, and in the exercise of a legal discretion, to grant or refuse bail. The granting or refusing of bail is a matter within the sound discretion of the court below, and this court will not control that discretion unless it has been flagrantly [310] abused. Lester v. State, 33 Ga. 192. It is insisted in the argument of counsel before this court that no jury would convict the petitioner upon the evidence in this record; and that if they should do so, a court would unhesitatingly set the verdict aside. Admitting that this presents the test by which the question as to whether the judge below has abused his discretion or not, we do not feel authorized to disturb the judgment in the case. The woman against whom the crime is charged to have been committed testified positively to the fact, and her evidence is not without corroboration; for the other woman, her companion, testified to the same thing; and there are other circumstances, such as evidence tending to show opportunity for committing the crime, which the trial court could consider. The rule as to whether this court would set aside a verdict which has the approval of the judge below is, that it will not interfere with the refusal of the trial court to grant a new trial upon the ground that the verdict is without evidence to support it, if there be any evidence in the record to support the finding of the jury. This court can not say, without traveling beyond its province, that the court below was unauthorized to believe the witnesses for the State in preference to the witnesses for the petitioner, although the latter are more numerous than the former. The remark of the judge that unless counsel should introduce his client, the applicant for bail, as a witness, he would refuse bail, can not be held as conclusive proof that the judge did not exercise his discretion in passing upon the issues involved in the case. Nor will his judgment be reversed because of his statement to counsel that it was not necessary for them to make an argument at the hearing, in view of the fact that he subsequently offered to vacate the judgment refusing bail and to hear argument upon the entire case. The questions presented by the record in Case No. 5076 are the same as those in No. 5075, and are controlled by the judgment therein rendered. Judgments affirmed. All the Justices concur.