Opinion
No. A-10903.
July 9, 1947.
(Syllabus.)
1. Habeas Corpus — Defendant Entitled to Bail Where Evidence Raises Presumption of Probable Accidental and not Intentional Homicide. Where the defendant is the only eyewitness and his testimony raises a presumption of a case of probable accidental and not intentional homicide and his testimony is uncontroverted by any direct proof to the contrary, defendant is entitled to release from jail pending trial on a charge of murder.
2. Same — Bail Granted in Sum of $20,000.
Habeas corpus proceeding by Thomas A. Albertson. Writ granted.
O. A. Cargill, of Oklahoma City, for petitioner.
Mac Q. Williamson, Atty. Gen., and W. N. Mounger, Asst. County Atty., of Oklahoma City, for respondent.
The petitioner, Thomas A. Albertson, was charged in Oklahoma county with the crime of murder. At the preliminary examination he was held to the district court without bail. An information was filed against him in the district court of Oklahoma county, Okla., and said Thomas A. Albertson is now confined in the county jail of Oklahoma county, Okla.
Petition was made to the district court of Oklahoma county for writ of habeas corpus and a hearing thereon on the 13th day of May, 1947, which was duly heard by said court and the defendant, Thomas A. Albertson, was denied bail.
He filed his petition with this court on June 26, 1947, for writ of habeas corpus, alleging that he is not guilty of the crime of murder as charged and that the proof of murder, as charged, is not evident nor the presumption thereof great.
This petition was heard by agreement of the parties in this court on June 30, 1947, at the conclusion of which said proceeding was continued until July 2, 1947, and on said last date completed. It is unnecessary to give a detailed statement of the testimony presented at the hearing before this court. A complete transcript of the testimony taken before the district court on the petition for writ of habeas corpus was introduced herein and oral testimony was also heard at the hearing in this court. The defendant, the only eyewitness, testified in the proceeding before this court. The lower court did not have the benefit of the defendant's testimony. The evidence in the transcript from the proceedings taken below and the oral testimony taken in this court, considered together, is sufficient to raise the presumption of a case of probable accidental and not premeditated and intentional homicide. The testimony of the defendant, the only eyewitness, standing alone and uncontroverted by any direct and positive proof to the contrary, is sufficient to entitle the defendant to the writ and the same is granted. Ex parte Williams, 83 Okla. Cr. 322, 177 P.2d 138. Said Thomas A. Albertson is ordered to be released from the county jail of Oklahoma county upon the giving of bail in the sum of $20,000 to be approved by the court clerk of Oklahoma county.
In keeping with this order, the writ is hereby granted to the above-named petitioner in compliance with the order as hereinbefore stated.
BAREFOOT, P. J., absent and not participating. JONES, J., concurs.