(Syllabus.)

Bail-Defendant Committed for First-Degree Rape Held Entitled to Bail. Upon application to appellate court for bail by writ of habeas corpus, after commitment for a capital offense by committing magistrate, and information filed in the district court charging rape in the first degree, held, that petitioner is entitled to be admitted to bail as a matter of right. Bail is therefore allowed.

Proceeding on the application of Fred J. Kyles who was charged with first-degree rape, for a writ of habeas corpus to be admitted to bail. Application granted, and bail allowed.

Reily & Reily, for petitioner.

Jess J. Pullen, Asst. Atty. Gen., and Foy Edwards, Asst. Co. Atty., for the respondent.

DOYLE, J. In this proceeding, petitioner, Fred J. Kyles, by his attorneys, has presented to this court a verified petition wherein he alleges that he is unlawfully restrained of his liberty in the county jail of Pottawatomie county by Elza Evans, sheriff ; that the cause of the said restraint is that on August 14, 1937, there was filed in the district court of said county an information in substance charging that Fred J. Kyles did on or about the 10th day of June, 1937, in said county, make an assault in and upon one Susie Cook, a female, not the wife of him, the said Fred J. Kyles, and by means of force and violence overcoming her resistance rape and carnally know the said Susie Cook.

Petitioner further alleges upon his application to the district court of said county to be admitted to bail

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bond was allowed and bail fixed in the sum of $7,500, which order of said court was later set aside and bail refused.

And he further alleges that he is not guilty of the crime of rape in the first degree as charged in the information, and that the proof of his guilt of the crime of rape in the first degree is not evident nor the presumption thereof great.

The cause coming on to be heard August 18, 1937, counsel for the state made no objection to admitting petitioner to bail, the only question being as to the amount to be fixed.

Upon a consideration of the undisputed facts it was adjudged that petitioner is entitled to be admitted to bail, and it was further ordered that said petitioner be admitted to bail in the sum of $5,000, bond to be conditioned as required by law, said bond to be approved by the court clerk of Pottawatomie county.

DAVENPORT, P. J., and BAREFOOT, J., concur.