Opinion
No. A-11954.
July 8, 1953.
(Syllabus.)
1. Habeas Corpus — Burden on Petitioner to Show He Is Entitled to Bail. Upon application for bail by writ of habeas corpus, after commitment for capital offense by a magistrate, the burden is upon the petitioner to show that he is illegally deprived of his liberty and entitled to bail.
2. Bail — Unless Proof Is Evident or Presumption Great That Defendant Guilty, He Is Entitled to Bail. A mere conflict of testimony, even upon a vital issue, does not of itself entitle a defendant charged with a capital offense to be admitted to bail. The evidence must be considered as a whole, and when considered, unless the proof is evident or presumption great that defendant is guilty as charged, he is entitled to bail.
3. Robbery — Petitioner Held Entitled to Bail in Sum of $15,000. The petitioner's testimony considered with other evidence, and held sufficient to entitle accused in robbery with firearms case to be admitted to bail in the sum of $15,000.
Original proceeding in habeas corpus by Allan Karner, to be admitted to bail. Petitioner ordered admitted to bail and discharged from custody on approval of bond.
Paul W. Updegraff, Norman, for petitioner.
Hez Bussey, County Atty. Cleveland County, Norman, for respondent.
This is an original proceeding in habeas corpus instituted by the petitioner, Allan Karner, for the purpose of being admitted to bail on a charge of robbery with firearms pending against the petitioner in the district court of Cleveland county. The verified petition alleges that the petitioner is restrained in the county jail of Cleveland county at Norman, Oklahoma, and that prior to his incarceration, he was stationed at the Naval Air Technical Training Center at Norman, and that he is not guilty as charged and the presumption is not great nor the proof evident that he is guilty of robbery with firearms, as charged in the information.
At a hearing before this court, the defendant testified and his evidence was in the nature of an alibi. There was proof of the state which included positive identification of the defendant as the person who committed a robbery at the Santa Fe depot in Norman. It is unnecessary to give a summary of the evidence, or to comment upon the same, as the defendant will later be tried for the alleged commission of this offense. It is sufficient to state that a sufficient showing has been made to entitle the defendant to be admitted to bail. 22 O.S. 1951 § 1102[ 22-1102]; Ex parte Sistrunk, 84 Okla. Cr. 17, 178 P.2d 627.
It is therefore ordered that the petitioner, Allan Karner, be admitted to bail in the reasonable sum of $15,000, said bond to be conditioned as provided by law, to be approved by the court clerk of Cleveland county, that when said bond is given and approved by the court clerk of said county, the petitioner be discharged from custody.
POWELL, P.J., and BRETT, J., concur.