Opinion
No. A-10764.
July 10, 1946.
(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. Where an accused charged with murder seeks by a proceeding in habeas corpus to be admitted to bail, bail will be granted where defendant takes the witness stand, relates facts supporting his theory of self-defense, submits to cross-examination, and shows by testimony of sheriff that deceased had made threats towards the defendant prior to the homicide.
Original proceeding in habeas corpus by Lester Christenberry to be admitted to bail upon charge of murder. Bail granted.
Steele Boatman, of Okmulgee, for petitioner.
Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Jack Pitchford, Co. Atty., and L. A. Wallace. Asst. Co Atty, both of Okmulgee, for respondent.
This is an original proceeding in habeas corpus instituted by the petitioner, Lester Christenberry, for the purpose of being admitted to bail upon a charge of murder now pending against him in the superior court of Okmulgee county.
The verified petition alleges that the petitioner is restrained in the county jail of Okmulgee county by reason of a commitment issued by an examining magistrate, and that he now stands accused of the crime of murder by information filed in the superior court of Okmulgee county but that proof of his guilt is not evident nor presumption thereof great. Attached to the petition and made a part thereof is a certified copy of the transcript of the proceedings had in the preliminary examination and also a certified copy of the transcript of the proceedings taken before the district judge of Okmulgee county in an application for bail, which application was denied by the district court of Okmulgee county.
At the time of the hearing before this court, the petitioner took the witness stand and testified at length and was cross-examined by the county attorney of Okmulgee county. The sheriff of Okmulgee county also testified concerning threats made to him by the deceased against the defendant. According to the testimony of the defendant, he shot the deceased in self-defense while the deceased was advancing upon him with a knife. The defendant testified that he shot twice to try to stop the deceased, and then shot a third time to kill him. The proof is undisputed that three shots were fired, and that only one of them took effect in the body of the deceased. The deceased lived about five hours after he was struck by the bullet.
We do not desire to make any comment upon the weight of the evidence, but it is our conclusion after an examination of the transcripts of the record heretofore mentioned and a consideration of the evidence presented in open court that the petitioner has made a sufficient showing to be entitled to bail. Ex parte Shirack, 82 Okla. Cr. 334, 169 P.2d 1022; Ex parte Sherrill, 9 Okla. Cr. 562, 132 P. 508; Ex parte Centell, 38 Okla. Cr. 127, 259 P. 276.
It is therefore ordered that the petitioner be admitted to bail in the sum of fifteen thousand dollars, ($15,000), said bond to be conditioned as provided by law, to be approved by the court clerk of Okmulgee county; that when said bond is given and approved by the court clerk of said county that petitioner be discharged from custody.
BAREFOOT, J., concurs. DOYLE, J., not participating.