(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 Justified Admitting Applicant to Bail, Fixed in Sum of $25,000. 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 $25,000.

Original proceeding in habeas corpus by Raymond O'Quinn to secure bail on a charge of murder. Bail granted.

Tom Finney, Idabel, for petitioner.

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

BRETT, P.J.

This is an original petition in habeas corpus brought by petitioner Raymond O'Quinn, for the purpose of being admitted to bail upon a charge of the murder of Elton Akins now pending against him in the district court of Pushmataha county, Oklahoma.

The verified petition alleges that the petitioner is being unlawfully restrained of his liberty in the county jail of Pushmataha county, Oklahoma, where he is awaiting trial on an information pending in aforesaid district court in the said county. He alleges that proof of guilt of said crime allegedly committed on July 1, 1952, is not evident nor the presumption thereof great. It appears that he was denied bail at the preliminary hearing before a justice of the peace, and in a habeas corpus proceeding in the district court of Pushmataha county. On hearing herein on July 31, 1952, a transcript of the proceedings in the justice of the peace court was offered in evidence; witnesses were sworn and oral evidence offered by the petitioner himself. It will not be necessary to set out the evidence in detail. It is sufficient to say that, the petitioner testified in relation

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to prior personal difficulties and fights between himself and Elton Akins in which O'Quinn had been severely beaten, and that at the killing O'Quinn testified that the decedent was reaching for his pistol when he shot Akins. Further it appears herein that after Akins was shot he did shoot at the petitioner a time or two. This delineation only includes the gist of the petitioner's evidence; it does not include the state's case as offered at the preliminary. The district court did not have the benefit of this evidence in its habeas corpus proceeding. We do not desire to comment on the weight of the evidence. Nevertheless, the petitioner has made a sufficient showing to entitle him to bail. Ex parte Christenberry, 82 Okla. Cr. 378, 170 P.2d 871: Ex parte Lee, 91 Okla. Cr. 426, 219 P.2d 638.

It is therefore ordered that the petitioner be admitted to bail in the sum of $25,000, to be approved by the district court clerk of Pushmataha county, Oklahoma, and when said bond is given and approved by the district court clerk, that the petitioner be discharged from custody to await trial, and the further order of said district court.

JONES and POWELL, JJ., concur.

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