(Syllabus.)

1. Bail-When One Charged With a Capital Offense May be Admitted to Bail. Under Okla. 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 the trial, if the proof of guilt is not evident nor the presumption thereof great, and one charged with murder is entitled, as a matter of right, to a hearing prior to trial on an application for admission to bail, after the information has been filed.

2. Same-Burden of Proof on Applicant for Admission to Bail in Murder Case. On a hearing of an application for bail by the person informed against for murder, to determine whether or not the proof is evident, or the presumption thereof great, the burden of proof is on the petitioner.

3. Same-Insufficiency of Evidence to Entitle Petitioner to Bail. The evidence is insufficient to entitle the petitioner to bail.

Original habeas corpus proceeding by John Langley to secure admission to bail. Bail denied.

A. L. Commons and Jack Brown, both of Miami, for petitioner.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Charles C. Chestnut, of Miami, for respondent.

BRETT, J. This is an original action in habeas corpus, instituted by the petitioner, John Langley, for the

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purpose of being admitted to bail, upon a charge of murder, now pending against him in the district court of Ottawa county, Oklahoma.

The verified petition alleges that the petitioner is being unlawfully restrained of his liberty in the county jail of Ottawa county, Oklahoma, by James A. Alleman, sheriff. He alleges that he now stands charged by information with the crime of the murder of Fred Eby, but the proof of guilt of said offense is not evident, nor the presumption thereof great.

Attached to the petition is a certified copy of the transcript of the proceedings and testimony in the preliminary examination in the justice of peace court of Ed Zilar of the city of Miami, Ottawa county, Oklahoma, on April 26, 1947. It is unnecessary to comment upon the weight of evidence at the hearing herein. It is sufficient to say that on the preliminary examination, the petitioner was bound over to the district court on the charge of murder. Thereafter, application was made to the district court of Ottawa county, and bail again denied.

In our opinion, the petitioner has failed to sustain the burden of establishing that the proof of his guilt is not evident, or the presumption of his guilt is not great, on the charge of murder, and bail should therefore be denied.

At the time of said hearing an order was made and entered expressing the opinion of the court that the proof of guilt was evident and the presumption thereof great; that the petitioner had committed the crime of murder, and bail was denied, and that the petitioner should be held in the custody of the sheriff of Ottawa county, pending trial in the district court.

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In conformity to said order, it is the judgment of this court that the petitioner be denied bail.

BAREFOOT, P. J., and JONES, J., concur.