Ex parte Martin

McLain, C. This is an appeal from an order of Chancellor J. S. Hicks, refusing bail to Jesse Martin at the hearing of a writ of habeas corpus, on the 22d day of April, 1910, in the courthouse of Sharkey county. Jesse Martin was indicted in Sharkey county at the March term, 1910, for the murder of one Noah Borodofsky. Counsel for relator quotes, with approval, from the case of Moore v. State, 36 Miss. 137, as follows: “We wish it understood that, on application for bail, we may grant the bail even where the jury might, and perhaps ought, on the same evidence, to render a verdict' of guilty for murder.” This rule is criticised by this court in the case of Ex parte Bridewell, 57 Miss. 39, in this language: “If by this it was meant that this court, or the presiding judge, on the hearing of a writ of habeas corpus, might, in its discretion and under the exceptional circumstances alluded to above, grant bail, even though the relator had not made out a case by which he was constitutionally entitled to demand it, we approve the remark; but if it is meant that the applicant, in the absence of such exceptional circumstances, can ever be said to have established a legal right to demand enlargement by testimony which would make it the duty of a jury to convict him of a capital crime, we dissent from it.” A prisoner, if indicted for a capital offense, when proof is evident or presumption great, should not be admitted to bail, except under special and extraordinary circumstances, or other causes making it reasonable that he should be bailed; but, if the proof is not evident nor the presumption great, he is entitled to bail as a matter of right. In Wray’s case, 30 Miss. 673, it was held that, if a well-founded doubt (of guilt) can even be entertained, then the proof cannot be said to be evident nor the presumption great, and in such case bail must be granted. We have carefully inspected the record in this case. We re [570] frain from making any comment on the testimony. The chancellor was the trier of the facts, and acted upon the conviction the testimony made upon his mind. He saw the witnesses and heard them- testify, and was in a position to determine their credibility and give such weight to- the testimony of each as in his judgment it was entitled to. After a careful study of the testimony in the record of this case, it seems to us that it cannot be said that the chancellor abused his discretion in declining to allow the relator bail. The decision of the chancellor should be affirmed. Per Curiam. Eor reasons stated in the above opinion of the commissioner, this case is affirmed. Affirmed.