
    Ex parte W. A. (JACK) STONE.
    No. A-7149.
    Opinion Filed Sept. 1, 1928.
    (269 Pac. 785.)
    Taylor & Taylor, for petitioner.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. . Atty. Gen., for the State.
   Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst, habeas corpus for bail. Petitioner alleges that he is held by the sheriff of Garfield county under commitment of a justice of the peace on a charge of rape in the first degree, that an application for bail was presented to the district judge of that county and bail denied.

The petitioner is charged with rape in the first degree as having been committed upon the person of a female child. 8 years of age. Rape in the first degree is punishable by imprisonment not less than 15 years; the maximum punishment is death. Section 1838, Comp. iStat. 1921. A person accused of crime is entitled to bail except where the charge is for a capital offense, where the proof of guilt is evident or the presumption thereof great. Article 2, § 8, Const. The writ of habeas corpus may be had for the purpose of letting an accused person to bail. Sections 434, 2919, Comp. Stat. 1921.

Where a person is charged with a capital offense and has been committed by an examining magistrate and makes application to this court by habeas corpus to be let to bail, a burden is on him to show facts sufficient to entitle him to bail, unless such facts appear from the evidence adduced on the part of the prosecution. Ex parte Pope, 37 Okla. Cr. 366, 259 P. 149; Ex parte Whitenack, 38 Okla. Cr. 102, 259 P. 165.

We have examined the petition filed herein and' the transcript of the evidence taken at the preliminary and the additional affidavits filed. The petitioner did not take the stand, and offered no evidence. We are of the opinion that petitioner has not sustained the burden fixed by the law and upon the showing made is not entitled to be let to bail. As the case has not yet been tried, we deem it unnecessary to recite or comment upon the evidence.

The writ is denied.

DOYLE, P J., and DAVENPORT, J., concur.  