
    State ex rel. Edward J. McGrath, Plaintiff in Error, v. D. C. Coleman, Sheriff of Dade County, Defendant in Error.
    199 So. 567
    Special Division B
    Opinion Filed January 7, 1941
    
      
      Bart A. Riley, for Plaintiff in Error;
    
      G. A. Worley, State Attorney, for Defendant in Error.
   Chapman, J.

On petition for writ of habeas corpus filed in the Circuit Court of Dade County, Florida, it was made to appear that Edward J. McGrath was being confined to the county jail of Dade County, Florida, under an indictment returned by a grand jury of Monroe County, Florida, charging him with the crime of murder in the first degree. The petitioner contended that his confinement in the Dade County jail under the aforesaid indictment was unlawful and contrary to the constitutional rights of the said Edward J. McGrath in that the proof that the petitioner committed the crime charged in the indictment was not evident nor the presumption great.

A writ issued on the petition and testimony in support of the tendered issues taken before the lower court, and, after hearing all the testimony, the lower court made and entered an order remanding the petitioner to the custody of the Sheriff of Dade County, Florida, but allowed a writ of error therefrom to this Court. The appeal was perfected and the case has been orally argued by counsel and on briefs. We have read the testimony appearing in the record and the several cases cited in the briefs. AVe conclude, from a careful consideration of all the testimony, that the proof is not evident nor the presumption great that Edward J. Mc-Grath committed the crime charged in the indictment presented by a Monroe County grand jury against the petitioner. We are not advised of testimony except that certified to us by the circuit judge and base our conclusion on the .transcript of the record certified to this Court. See Deeb v. Gandy, 110 Fla. 283, 148 So. 540.

The judgment of the'lower court denying bail and remanding the petitioner to the custody of the Sheriff of Dade County, Florida, to be held without bail under the indictment presented by the Monroe County grand jury is hereby reversed with directions that the Judge of the Circuit Court of Monroe County, by appropriate order, fix the amount and conditions of bail to be furnished by the petitioner Edward J. McGrath. See Ex parte: Emory Williams, et al., 135 Fla. 283, 184 So. 851.

It is so ordered.

Whitfield, Brown and Thomas, J. J., concur.

Chief Justice Terrell and Justices Buford and Adams not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.  