Original action in which petitioner seeks release from jail on bail pending his trial for murder in the district court of Sequoyah County, Oklahoma. Writ granted, and bail set at $25,000.00.

Green & Green, R.O. Ingle, Sallisaw, for petitioner.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., Katherine Ingle, Co. Atty., Sequoyah County, Sallisaw, for respondent.

BRETT, Judge.

¶1 This is an original action instituted by the petitioner, Ray C. Harvell, for the purpose of being admitted to bail upon a charge of murder now pending against him in the district court of Sequoyah County, Oklahoma.

¶2 Petitioner alleges that he is restrained of his liberty by the sheriff of Sequoyah County, and that the cause of his restraint is an accusation of murder, allegedly committed by petitioner in said county on May 21, 1962, wherein he is charged with having unlawfully, wilfully, maliciously, intentionally and feloniously with a premeditated design upon the part of said petitioner, effected the death of one Samuel R. Pleasant, contrary to law.

¶3 The matter came on for hearing in this court on June 4, 1962, and at the hearing the court had the benefit of a transcript of the record made in the district court of Sequoyah County, wherein said petitioner asked to be admitted to bail, and upon which bail was denied on the ground that the presumption of guilt was evident, and the proof thereof great; and also heard testimony offered before this court.

¶4 This court has repeatedly held that the test of a case as to whether or not a petitioner is entitled to bail is, would the evidence offered at the hearing for bail sustain life imprisonment or the death penalty. In re Peters, Okl.Cr., 351 P.2d 1020; In re Pierce, Okl.Cr., 356 P.2d 377.

¶5 Without expressing an opinion upon the weight of the evidence, this court is of the opinion that the evidence offered at the hearing before this court would be insufficient to sustain a judgment and sentence of murder, hence the petition for bail is accordingly granted, and the amount thereof set at the sum of $25,000.00.

¶6 It is therefore ordered that the petitioner be admitted to bail in the sum of $25,000.00, said bond to be conditioned as provided by law, and to be approved by the court clerk of Sequoyah County, Oklahoma; that when said bond is given, and approved by the court clerk of said county, the petitioner be discharged from custody, pending the further order of said district court.

NIX, P.J., concurs.

BUSSEY, J., not participating.