¶1— The judge of probate had the witnesses before him in this cause, and heard them testify. lie refused bail. If he belipved Lee, the deceased, made no hostile demonstration immediately preceding the blow stricken by Warrick, then his ruling was clearly right. The homicide being committed with a deadly weapon, unless the testimony which proved the killing, proved also the justification or extenuation, then the onus was cast on the defendant to repel by proof the inference of malice the law raises. — Hadley v. The State, 55 Ala. 31. The remark of Warrick testified to by Hendricks should be weighed in connection with the other evidence. The law does not require that any mere oral testimony' shall be believed. Of all such, whether given for or against the accused, the jurors, or other body charged with the ascertainment of the facts, are the sole judges. If the homicide was perpetrated pursuant to a previously formed design, or in revenge of a previous wrong, real or supposed, then it was murder in an aggravated form. If, immediately preceding the blow, Lee, in the language the witness puts in the mouth of Warrick, “grabbed at him '[Warrick], and started to strike him,” then the homicide would not rise above voluntary manslaughter, unless the blow was struck pursuant to a previously formed design.
¶2Under our previous rulings, we can not affirm that the judge of probate erred in refusing bail. — Ex parte McAnally, 53 Ala. 495; Exparte Allen, 55 Ala. 258; Ex parte Weaver, Ib. 250 ; Ex parte Nettles, 58 Ala. 268 ; Ex parte Brown, 65 Ala. 446.
¶3Writ of habeas corpus denied.