Opinion
No. A-7996.
Opinion Filed October 11, 1930.
Bail — Habeas Corpus — Burden Upon One Held for Murder by Examining Magistrate to Show Right to Bail. Where an application by habeas corpus to be let to bail is made by one charged with murder and held by an examining magistrate, this court will not presume either justification or mitigation, but the burden is on the petitioner to show facts sufficient to entitle him to bail unless such facts appear from the evidence introduced on the part of the prosecution.
DAVENPORT, J., dissenting.
Proceedings by Clyde Click for writ of habeas corpus to be let to bail, opposed by the Sheriff of Pontotoc County. Writ denied.
Thompson Kice, King Crawford, J. Wm. Crawford, Claude. V. Thompson, John P. Crawford, and C.O. Barton, for petitioner.
J. Berry King, Atty. Gen., for the State.
This is an original proceeding in habeas corpus to be let to bail. Petitioner alleges that he is unlawfully restrained by the sheriff of Pontotoc county. That he is charged with murder for the killing of one J.D. Sloan, and upon a preliminary hearing before a magistrate was held without bail for the district court of Pontotoc county. That the proof is not evident nor the presumption great.
An examination of the transcript of the testimony taken at the preliminary hearing discloses that on the date charged petitioner made an unprovoked assault on the deceased Sloan. Eyewitnesses testified that just prior to the homicide deceased, who was a taxi driver, was looking at a passenger train as it arrived. Petitioner approached him from the rear, and, without any words being spoken, knocked him to the sidewalk, then kicked him several times on the head, got on the body and struck him with his fists, and made an expression of malice, when some one present asked that his further assault be prevented. There was a fracture on the left side of the head of deceased one and one-half inches long, a fracture on the right side about one inch long, and there were other wounds about the head and face. Death resulted from concussion of the brain. The defendant did not take the stand, and offered no testimony.
It is well settled that, where the defendant in a capital case, held by an examining magistrate, makes application by habeas corpus to be let to bail, the burden is upon him to show facts sufficient to entitle him to bail unless such facts appear from the evidence adduced on the part of the prosecution. Ex parte Pope, 37 Okla. Cr. 366, 259 P. 149; Ex parte Whitenack, 38 Okla. Cr. 102, 259 P. 165; In re Jones, 41 Okla. Cr. 224, 271 P. 426; Ex parte Ditmore, 42 Okla. Cr. 111, 274 P. 697.
Here the evidence discloses an unprovoked and vicious assault without excuse or provocation. This court does not presume either justification or mitigation. In re Fraley, 3 Okla. Cr. 719, 109 P. 295, 139 Am. St. Rep. 988.
The writ is denied.
CHAPPELL, J., concurs.
DAVENPORT, J., dissents.