(Syllabus.)

1. Habeas Corpus-Burden on Petitioner to Show Facts Sufficient to Entitle Him to Bail. Upon an application to Criminal Court of Appeals for bail by writ of habeas corpus, after commitment for a capital offense by an examining magistrate, the burden is upon the petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution.

2. Same-Presumption Not Great Nor Proof Evident That Petitioner Guilty of Murder-Bail Fixed in Sum of $20,000. Transcript of testimony taken at preliminary examination is considered together with the statement of county attorney that

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he thinks petitioner is entitled to bail, and from such evidence and statement of county attorney it is held that the proof is not evident nor the presumption great that the petitioner is guilty of murder, and bail is fixed in sum of $20,000.

Original action in habeas corpus by Alvin J. Shirack to be admitted to bail. Bail granted.

W. C. Henneberry, of Tulsa, for petitioner.

Dixie Gilmer, County Atty., and M. S. Simms, Asst. County Atty., both of Tulsa, for respondent.

JONES,P. J. This is an original action instituted by the petitioner, Alvin J. Shirack, for the purpose of being admitted to bail upon a charge of murder now pending against him in the district court of Tulsa county.

The petition alleges that the said Alvin J. Shirack is restrained of his liberty by the sheriff of Tulsa county, Okla., by reason of a commitment issued by an examining magistrate, committing him to the county jail after preliminary examination had upon a complaint wherein the petitioner Alvin J. Shirack was charged with the crime of murder alleged to have been committed by killing one Doris Alvey on April 9, 1946; that by information filed in the district court of Tulsa county he is charged with the murder of said Doris Alvey; that under the evidence produced on his preliminary examination, the proof of his guilt is not evident nor the presumption thereof great that petitioner is guilty of murder; that petitioner has made application to be admitted to bail to the district court of Tulsa county, which application was by said court denied.

At the time of said hearing, the petitioner introduced a transcript of the testimony taken before the committing magistrate at the preliminary examination and the assistant county attorney of Tulsa county

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appearing on behalf of the respondent, sheriff of Tulsa county, stated that he thought the petitioner was entitled to some reasonable bail.

Without expressing any opinion upon the weight of the evidence, we are of the opinion that the evidence produced upon the preliminary examination was sufficient to warrant committing petitioner for trial upon the crime of murder. We are also of the opinion that under the testimony submitted, when considered together with the statement of the county attorney, that petitioner should be allowed bail.

It is therefore ordered that the petitioner be admitted to bail in the sum of $20,000, said bond to be conditioned as provided by law, to be approved by the court clerk of Tulsa 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.