Petitioners were under indictment for murder, and were brought before the judge of probate of Franklin county on habeas corpus, on an application to be admitted to bail. The case coming up for hearing, there was produced in evidence for the State the indictment-found by the grand jury, indorsed a true bill, and charging the petitioners with the crime of murder; and here the State rested. It was under this charge the petitioners were imprisoned. The petitioners thereupon offered oral proof, tending to exculpate themselves. The State offered no inculpatory testimony, but rested on the case as thus presented. No witness was examined who admitted he had any knowledge of the circumstances under which deceased had .come to his death ; and looking alone at the oral testimony thus offered, the mind is left in uncertainty whether the deceased came to his death at the hands of another, by accident, or by suicide. If. all the testimony offered was believed, the petitioners were innocent. The probate judge, in .ruling on the application, among other things, said : “.Several witnesses for the State were present, but not. examined either by the defendant or State. After hearing all the evidence introduced, the judge is of opinion that the presumption of the degree of murder raised by the indictment is not overturned. The judge heard no evidence for the State, upon whose evidence the indictment was found. Hearing no evidence for the State, the judge is of opinion he could not arrive to a conclusion that the charge in the indictment is too great.”
The language quoted above is somewhat obscure, but tends to the conclusion that, in the absence of a full presentation of all the evidence, including that which the grand jury had before them in their deliberations, the judge did not feel at lib'erty to weigh and fully consider the probative effect of the
In proceedings to obtain bail, it is well settled that the production of an indictment found by a grand jury makes a prima fade case of guilt in the highest degree of which the defendant could be convicted under the indictment. — Ex parte. McGlawn, 75 Ala. 38; Ex parte Rhear, 77 Ala. 92; Church on Habeas Corpus, § 404. This, however, is but a presumption in the absence of all other proof. When exculpatory evidence is produced, such testimony must be weighed, together with the presumption raised by the indictment; and the decision must be pronounced on the entire case as thus presented. As was said in Ex parte Bryant, 36 Ala. 270, “To justify a court in refusing bail, whether before or after indictment found, the judge must be of opinion, upon the evidence produced upon the hearing of the application, that ‘the proof is evident, or the presumption great,’ that the defendant is guilty of the offense in the degree punished capitally.” , We hold that, when the defendants introduced their testimony, the duty did not rest on them to introduce the State’s evidence, that the court might, with fuller information, pronounce on its sufficiency. It was the State’s duty to-introduce its own criminative evidence, if it was deemed necessary to establish the probability of that supreme measure of guilt, which the law declares may be punished capitally. If, when all the testimony is weighed, the court can satisfactorily affirm that “the proof is evident, or the presumption great,” that the petitioners are guilty of the offense charged in that degree which is not bailable, bail should be denied. If, on the other hand, the testimony is such as to disprove the defendant’s guilt of the offense in the non-bailable degree, or, if when duly weighed, it is such that a fair-minded man would entertain a reasonable doubt of guilt in such degree, then the petitioner is entitled to bail.
The writs of certiorari and habeas corpus will be awarded, to bring the proceedings and the prisoners before this court, unless the petitioners, when informed of this ruling, are content to renew their application before a court or judge of primary jurisdiction.
Certiorari and habeas corpus nisi ordered.