Ex Parte Petty , 40 Okla. Crim. 123 ( 1928 )

Ab Petty filed his petition in this court on May 7, 1928, alleging his unlawful imprisonment and restraint of his liberty by E.R. Young, sheriff of Stephens county, at Duncan, Okla. Attached to and made a part of the petition is a transcript of the proceedings had before the county court of said county, wherein the petitioner is charged with the murder of one Andrew Thomas, alleged to have been committed in said county on or about the 31st day of March, 1928, and the testimony of the defendant taken after the writ of habeas corpus was filed in this court.

The transcript discloses that, upon a preliminary examination, the county judge committed said petitioner without bail on the offense charged to await the action of the district court thereon. At the hearing, it was contended by the petitioner that he was entitled to bail upon the testimony of the state, and upon the evidence in his behalf, for the reason that the proof is not evident or the presumption great. It is also set forth that an application was made to the district court of Stephens county for bail and was denied. The determination and conclusion of the court in each case is based upon a settled rule of this court that, upon application for bail by writ of habeas corpus after commitment for a capital offense, the burden is upon the petitioner to show facts sufficient to entitle him to bail, when these facts do not appear from the evidence adduced on the part of the prosecution.

Upon a review of the record, it is the opinion of the court that the petitioner upon his application is not entitled to bail. Bail is therefore refused.