
    Ex parte JOHN A. KENDALL.
    No. A-5172.
    Opinion Filed March 7, 1925.
    (233 Pac. 774.)
    (Syllabus.)
    1. Bail — Right to Bail After Commitment for Capital Offense— Burden on Petitioner. On the hearing of application for admission to bail, after commitment, for a capital offense, to determine whether or not the proof of guilt is evident, or presumption thereof great, the burden is on the petitioner.
    
      A. Same — ¡Evidence Justifying Bail. Evidence considered; held, that the proof of guilt is not evident, nor the presumption thereof great. Bail is therefore allowed.
    Application of John A. Kendall for writ of habeas corpus to be let to bail.
    Writ allowed.
    Sigler & Jackson, ¡Champion, Champion & George and Hayson & Lukenbill, for petitioner.
    George F. Short, Atty. ¡Gen., and John L. Hodge, Co. Atty., of Carter Co. (R. Brett, of counsel), for respondent.
   DOYLE, J.

In this proceeding, John A. Kendall, petitioner, filed in this court on May 15, 1924, his duly verified petition alleging that he is unlawfully restrained of his liberty by E. C. London, sheriff of Carter county; that the cause of said restraint is that he is being held upon an indictment charging, him with the murder of one Maynard Kendall, which indictment was returned by the grand jury in the district court of Carter county on the 3rd day of May, 1924; that petitioner has been remanded to the custody of said sheriff by W. F. Freeman, judge of said district court, after a full and complete hearing, on a proceeding in habeas corpus to await trial upon said charge without bail; that said restraint and imprisonment are illegal, for the reason that there was no competent or legal evidence introduced on said proceeding showing the commission of the crime of murder, or probable cause to believe petitioner to be guilty of the crime of murder, and at most the proof of his guilt is not evident, nor the presumption thereof great, by reason whereof he is entitled to be admitted to bail upon said charge.

On May 16, 1924, by agreement of the parties the cause was heard upon the evidence taken upon the habeas corpus proceeding before Judge Freeman of the district court of Carter county. Upon a consideration of the testimony and the argument of counsel, it was the opinion of the court that under the evidence submitted, the proof of petitioner’s guilt is not evident nor the presumption thereof great, and that he is accordingly entitled as a matter of right to be admitted to bail. It was therefore on said day adjudged and ordered that petitioner, John A. Kendall, be admitted to bail upon the charge of murder now pending against him in the district court of Carter county, and that his bond be fixed at the sum of $25,000, bond to be conditioned as by law required; and that he be released from custody upon ha® executing and causing to be filed with and approved by the court clerk of Carter county a good and sufficient bond in said sum, conditioned as required by law.

MATSON, P. J., and BESSEY, J., concur.  