STATE v. GAMBRELL

(80 South. 622) STATE v. GAMBRELL. (6 Div. 503.) (Court of Appeals of Alabama. Dec. 17, 1918.) Habeas Corpus <&wkey;113(2) — Order Based on Conflicting Evidence — Review. Order of circuit court in habeas corpus proceeding, allowing bail to defendant, hold under an indictment charging him with murder in the first degree, will not be disturbed, where the evidence discloses a conflict and the judgment of the court can well be founded thereon. Appeal from Circuit Court, Jefferson County ; Wm. E. Fort, Judge. Cuba Gambrell, alias, etc., was indicted for murder in the first degree. Prom an order of the circuit court in habeas corpusi proceeding allowing the defendant bail, the State appeals. Affirmed. Emmett S. Thigpen, Atty. Gen., for the State. Horace C. Alford, of Birmingham, and O. R. Robinson, of Ashville, for appellee. [MAJORITY — BRICKEN, J.] BRICKEN, J. This appeal is by the state from an order made by the judge of the Tenth judicial circuit in a habeas corpus proceeding, in which the court, after hearing all-the evidence, allowed the defendant bail! The .defendant was held under an indictment charging him with murder in the first degree. An exámination of the evidence discloses a conflict, and the judgment of the court can well he founded thereon. It has often been held that in reviewing the finding of the primary tribunal, unless his finding is contrary to the great weight or preponderance of the evidence, such finding will not be disturbed. State v. Chancey, 14 Ala. App. 119, 72 South. 213; State v. Lacey, 158 Ala. 16, 48 South. 343. The Attorney General, who represents the state before this court, concedes by brief filed that an affirmance of the order of the lower court should he had. The order of the judge of the Tenth judicial circuit in granting the petition and allowing hail is affirmed. Affirmed.