(Syllabus.)

1. Bail — Right to Bail in Capital Case. The right to bail in a capital case is absolute unless the proof is evident or the presumption great that the defendant is guilty as charged and that in case of conviction he would probably receive life sentence or death.

2. Same — Evidence Justifying Admitting Applicant to Bail in Sum of $20,000. Upon application for bail by writ of habeas corpus, after commitment for a capital offense by an examining magistrate, evidence produced in connection with application for bail justified admitting applicant to bail, and bail fixed in the sum of $20,000.

Original proceeding in habeas corpus by Albert Lee to be admitted to bail on charge of murder. Bail granted.

Ed Shipp and Bascom L. Coker, Idabel, for petitioner.

Mac Q. Williamson, Atty. Gen., and I.C. Sprague, Co. Atty., McCurtain County, Idabel, for respondent.

POWELL, J.

This is an original proceeding in habeas corpus instituted by the petitioner, Albert Lee, for the purpose of being admitted to bail upon a charge of murder now pending against him in the district court of McCurtain county.

The verified petition alleges that petitioner is restrained in the county jail of McCurtain county, where he is awaiting trial by reason of an information filed in the district court of said county, but that the proof of his guilt is not evident nor the presumption thereof great. Attached to the petition and made a part thereof is a verified statement, executed by the petitioner, purporting to set out the facts in connection with the death with

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which he is charged, and which, if true, would support a plea of self-defense.

Hearing was had before this court, and the proof developed that the defendant was denied bail by the district court of McCurtain county. There was submitted for the consideration of the court a transcript of the evidence introduced at the hearing upon the examination had before the county judge of McCurtain county, acting as an examining magistrate, and this court has considered said evidence.

The petitioner in this court testified at length, and was cross-examined by the county attorney of McCurtain county. Defendant testified that he hit the deceased in the head with a heavy wrench while deceased was pursuing defendant with a loaded pistol around defendant's truck; that deceased dropped the pistol but tried to regain it, and that defendant hit deceased with the wrench several times more, and that deceased became unconscious and finally died.

The state could produce no eyewitness to the encounter. When defendant, in a hearing as here, takes the witness stand and testifies in detail, and submits himself to cross-examination, such fact lends weight to the alleged factual situation in support of said self-defense claim.

We do not desire to make any comment upon the weight of the evidence, but it is our conclusion, after an examination of the transcript of the record heretofore mentioned, and a consideration of the evidence presented in open court, that the petitioner has made a sufficient showing to be entitled to bail. Ex parte Christenberry, 82 Okla. Cr. 378, 170 P.2d 871, and the cases therein cited.

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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 McCurtain county; and when said bond is given and approved by the court clerk of said county, that petitioner be discharged from custody.

JONES, P.J., and BRETT, J., concur.