(Syllabus.)

1. Bail — Burden on Petitioner for Bail After Commitment for Capital Offense. Under Constitution art. II § 8, providing that "`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", upon an application for bail by writ of habeas corpus, after commitment for a capital offense, by a committing magistrate, the burden is upon the petitioner to show that he is illegally deprived of his liberty.

2. Same — Persons Accused of Attempted Robbery, With Dangerous Weapons Held Entitled to Bail. Petitioners charged with attempted robbery with a dangerous weapon, were held and committed without bail on the preliminary examination. Evidence examined, and held sufficient to show that petitioners are entitled to be admitted to bail as a matter of legal right.

Proceeding in the matter of habeas corpus petition of Scott Junior Due and James D. Teeters seeking release from the county jail at El Reno. Bail allowed.

Vincent Harper, El Reno, for petitioners.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.

BRETT, P.J.

On March 13, 1950, the petitioners, Scott Junior Due and James D. Teeters, filed in this court their petition for a writ of habeas corpus alleging that they were unlawfully restrained in custody in the county jail of Canadian county, at El Reno, Oklahoma, by Lloyd Palmer, sheriff of said county. They allege the cause of said restraint is a charge of attempted robbery with a dangerous weapon, pending against them upon which they were arraigned before the district court of Canadian county, and the judge thereof, and bail denied.

Upon application to this court it was contended that the petitioners were entitled to bail, as a matter of right, for the reason proof of their guilt was not evident nor the presumption thereof great.

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The county attorney waived appearance at the hearing on said petition and consented that the same may be heard upon the statement of counsel for the petitioners. Under the provisions of the Oklahoma Constitution, Article II, § 8:

"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."

This court has repeatedly held that under that constitutional provision, one charged with a capital offense is entitled to bail as an absolute right, "unless the proof of guilt is evident, or the presumption thereof is great". Ex parte Adams, 29 Okla. Cr. 341, 233 P. 788. Upon being well and sufficiently advised of the merits herein, it was adjudged and ordered that the petitioners be admitted to bail in the sum of $5,000 each, to be conditioned as by law provided, the same to be approved by the court clerk of Canadian county, Oklahoma, and upon approval of the same, said clerk to notify the sheriff of said county who was directed to discharge the petitioners from custody.

JONES and POWELL, JJ., concur.