(Syllabus.)

1. Bail -- Right of One Charged With Murder to Be Admitted to Bail -- Right to Hearing on Application. 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. 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. Same -- Habeas Corpus -- Bail Denied Where Accused Did not Take Stand and Proof Showed Crime Was More Than Manslaughter.

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Where an accused charged with murder and held by a committing magistrate seeks by a proceeding in habeas corpus to be let to bail, bail will be denied where he did not take the stand and disclose his defense and submit to cross-examination, unless the testimony for the state discloses that the crime charged is no more than manslaughter.

Application of Claude Pinkerton for writ of habeas corpus. Writ denied.

Phil K. Oldham, for petitioner.

Mac Q. Williamson, Atty. Gen., and A. Camp Bonds, Co. Atty., for the State.

EDWARDS, P.J. This is an original proceeding in habeas corpus to be let to bail. Petitioner, a white man, is charged with murder in Muskogee county in the killing of Alonzo Ashley, a negro. He alleges the proof is not evident nor the presumption great, and that he is entitled to bail on the evidence of the state. He had a preliminary hearing before a magistrate in which the state introduced ample proof of probable cause. Petitioner did not take the stand and offered no testimony. As a trial has not been had, we deem it unnecessary to make a recital of, or comment on, the state's testimony.

Article 2, § 8, of the state Constitution, provides, in substance, that all persons charged with crime shall be allowed bail except for capital offenses where the proof is evident or the presumption great. After one charged with a capital offense has been held for trial by a committing magistrate, he may make application to be let to bail before a district or superior court or by a justice or judge thereof or to this court. Section 2814, Okla. Stat. 1931. Upon an application for bail by habeas corpus, the burden is on the petitioner to show that he is illegally deprived of his liberty; that is, it must be made to appear that the proof is not evident nor the presumption great that he is

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guilty of a capital offense. Ex parte Lacy, 20 Okla. Cr. 440, 203 Pac. 1050; Ex parte Smith, 31 Okla. Cr. 132, 237 Pac. 464; Ex parte Davis, 48 Okla. Cr. 199, 290 Pac. 356; Ex parte Welsher, 53 Okla. Cr. 81, 8 P.2d 76.

This court indulges no presumption for the accused either of justification, mitigation, or reasonable doubt by reason of a conflict of testimony. In general, where there is a sufficient showing of probable cause of the commission of a capital crime by defendant, he is not entitled to bail where he does not take the stand and disclose his defense and submit himself to cross-examination. There is little use for a defendant to apply to this court for bail where he has not taken the stand.

The writ is denied.

DAVENPORT and DOYLE, JJ., concur.