28 Ala. 89 | Ala. | 1856
By the Code, murder is divided into two degrees. Murder in the first degree may be punished with death, but murder in the second degree can be punished only by confinement in the penitentiary.
Section 3080 of the Code defines murder in the first degree as follows : “ Every homicide perpetrated by poison, lying in wait, or by any other kind of willful, deliberate, malicious, and premeditated killing, or which is committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery, or burglary, is murder in the first degree; so, also, every homicide perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other
By the provisions of our constitution and Code, the defendant is “ entitled to bail as a matter of right,” at our hands, unless we are of opinion, on the evidence, that he is guilty of murder in the degree which may be punished capitally — that is, in the first degree. — Const. of Ala. art. I. § 11; Ex parte McCrary, 22 Ala. Rep. 65; Ex parte Croom & May, 19 Ala. Rep. 561; Code, §§ 3669, 3670.
We cannot, upon the evidence before us, say that he is guilty of murder in the first degree. And upon that ground, we are unanimous in the opinion, that he is entitled to bail as a matter of right, independent of the other grounds relied on by the counsel for the defendant.
As the case will hereafter be tried by a jury, we will not incur the hazard of doing - injury either to the State or the defendant, by commenting upon the evidence, when our duty does not require us to make any further disclosure of our opinion than we have above made.
On the part of the defendant it is admitted that ho is a man of fortune. This is a fact which may well be considered in £xing¡the amount of bail.
In consideration of the premises, it is ordered, that the defendant be admitted to bail; that the amount thereof be twenty thousand dollars; and that, upon his giving a written undertaking, signed by himself and at least two sufficient sureties, agreeing to pay to the State of Alabama twenty thousand dollars, unless he, the said Thomas G-. Banks, appear at the next term of the city court of Mobile, and from term to term thereafter until discharged by law, to answer the offence of murder, to be approved by the sheriff of Mobile county, who is hereby directed to take bail under this order, that the sheriff may discharge the said Banks out of his custody.