Opinion
No. A-10804.
June 18, 1947.
(Syllabus.)
1. Bail — When One Charged With Capital Offense May Be Admitted to Bail. Under Const. art. 2, § 8, declaring "All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great," one charged with a capital offense may be admitted to bail after the information has been filed, prior to trial, if the proof of guilt is not evident nor the presumption thereof great, and one charged with murder is entitled as of right to a hearing on an application for admission to bail after the information has been filed, prior to trial.
2. Same — Burden of Proof on Petitioner Charged With Murder to Determine Whether or not Proof of Guilt is Evident or Presumption Thereof Great. On the hearing of an application for bail by one informed against for murder, to determine whether or not the proof of guilt is evident or the presumption thereof great, the burden of proof is on the petitioner.
3. Habeas Corpus — Evidence Held to Entitle Applicant Charged With Murder to Bail. The evidence is sufficient to entitle petitioner to bail.
Original action in habeas corpus by Hubert Potter to secure release on bail. Petition granted.
Steele Boatman, of Okmulgee, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and L. A. Wallace, Asst. Atty. Gen., for defendant in error.
This is an original action in habeas corpus instituted by the petitioner, Hubert Potter, for the purpose of being admitted to bail upon a charge of murder now pending against him in the district court of Okmulgee county.
The verified petition alleges that the petitioner is restrained of his liberty in the county jail of Okmulgee county, by Jim Kirby, sheriff of said county. That he now stands charged by information filed in the district court of Okmulgee county with the crime of murder, but the proof of his guilt of said crime is not evident nor the presumption thereof great. Attached to the petition was a certified copy of the transcript of the proceedings and testimony had in the preliminary examination in the justice of the peace court of H. D. Reed, on November 14, 1946.
It is unnecessary to comment upon the weight of the evidence at the hearing before this court. It developed that the petitioner made an application for bail before the district court of Okmulgee county, and after a hearing on said application, the district court made an order admitting the petitioner to bail in the sum of $10,000. It further appeared that petitioner was unable to make said bail and is still confined in the county jail of Okmulgee county.
It is our opinion, after consideration of the evidence presented in behalf of petitioner, that he has made a sufficient showing to be entitled to bail. Ex parte Centell, 38 Okla. Cr. 127, 259 P. 276; Ex parte Christenberry, 82 Okla. Cr. 378, 170 P.2d 871.
At the time of said hearing, an order was made admitting the petitioner to bail in the sum of $7,500. In conformity to said order, it is the judgment of this court that the petitioner be admitted to bail in the sum of $7,500, said bond to be conditioned as provided by law, to be approved by the court clerk of Okmulgee county; and that when said bond is given and approved by court clerk of said county, that the petitioner be discharged from custody.
BAREFOOT, P. J., and BRETT, J., concur.