State v. Lacey

48 So. 343, 158 Ala. 16, 1909 Ala. LEXIS 588

Opinion

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.