
    State v. Lacey.
    
      Habeas Corpus.
    
    (Decided Jan. 12, 1909.
    48 South. 343.)
    1. Habeas Corpus; Suspension of Writ; Bight of State to Review.— Under the provisions of section 6245, Code 1907, the state may appeal from a judgment granting bail, having effect to suspend the judgment pending the appeal; and said section is not violative of the constitutional provision against suspension of the writ of habeas corpus.
    2. Same; Appeal; Finding of Trial Judge. — Where the evidence is in conflict and the trial judge sees and hears the witnesses, his findings of fact will not be disturbed on review, unless contrary to the great weight of the evidence; and this rule applies, even though some of the witnesses did not appear and their evidence was in writing.
    Appeal from Shelby Probate Court.
    Heard before Hon. A. P. Longshore.
    Habeas corpus by Jake Lacy against the State to compel petitioner’s admittance to bail. From an order admitting petitioner to bail, the State appeals.
    Affirmed.
    Alexander M. Garber, Attorney-General and Borden H, Burr, Solicitor, for the State.
    The state has the right of appeal. — Sec. 6245, Code 1907; The State v. Durham, 139 Ala. 661; Toicn of Elba v. Rhodes, 142 Ala. 690; Burr v. Foster, 132 Ala. 41. This statute has been declared constitutional. — State v. Towery, 143 Ala. 48. Where it is patent that bail should be denied this court will reverse and render a decree admitting to bail.— State v. Durham, supra. Bail should have been denied in this cause. — Eat parte Hetties, 58 Ala. 268; Ex parte Bonner, 100 Ala. 115; 96 Ala. 110; 95 Ala. 24; Dabney ■r. The State. 113 Ala. 38.
    
      Estes, Jones & Welch and McMillan & Haynes, for appellee. Counsel insist that the section of the code permitting an appeal, and incarceration of the defendant while the state appeals is unconstitutional, and cite in support thereof.- — Ex Parte Groom, et al., 19 Ala. 561; Ex ¡Jarte- Banks, 28 Ala. 89; Ex parte Bryant, 34 Ala. 270; Hammons v. The ¡Atate, 59 Ala. 164; Ex ■parte A.cree, 63 Ala. 234. The court will not disturb the finding of the lower court allowing bail. — Ex parte Nettles, supra; Ex parte Bryant supra; Ex parte MeAmally, 53 Ala. 498; Ex parte ¡Aloan, 95 Ala. 24.
   ANDEBSON, J.

That the state has the right to appeal in this case there can be no doubt. Section 6245 of the Code of 1907. It lias also been held that this right given the state does not violate the Constitution. State v. Towery, 143 Ala. 48, 39 South. 309.

As has been repeatedly held by this court, where there is a conflict in the evidence and the judge below sees and hears the witnesses, his conclusion on the facts will not be disturbed, unless his finding is contrary to the great Aveight or preponderance of the evidence. It is insisted, by the state’s counsel that this rule should not apply in the case at bar, because the main Avitness for the state did not appear in person before the probate judge and his evidence Avas in writing. If all of the evidence considered by the probate judge was in AAuiting, then there might be merit- in counsel’s insistence; but all the witnesses save Piper did appear and testify in person, and the probate judge saw and heard them, and Ave are not prepared to reverse his order admitting the petitioner to bail.

Affirmed.

Haralson, Simpson and Denson. JJ., concur.  