
    
      Ex parte Buster Holland.
    No. A-109.
    Opinion Filed March 3, 1909.
    (100 Pac. 50.)
    BAIL — Right to' Bail in Capital Case. Under section 5770, Wilson’s Rev. & Ann. St. 19031, the accused in a capital case is entitled to bail on habeas corpus where the evidence shows that the proof of guilt is not evident and the presumption of guilt is not great.
    (Syllabus by the Court.)
    Petition of Buster Holland for a writ of habeas corpus. Petitioner admitted to bail.
    Buster Holland files in this court his duly verified petition for a writ of habeas corpus, and alleges: That he is illegally restrained of his liberty and is unlawfully imprisoned in the county jail of Nowata county, Okla., by Rufus R. Riley, sheriff of said county; and that the cause of said restraint and imprisonment, according to his best knowledge and belief, is that he is being held in said jail in said county and state charged with the crime’ of murder. And he further alleges that the proof is not evident nor the presumption great that he is guilty of said crime, and that his restraint and imprisonment is therefore illegal and unauthorized. The petitioner prays that this court grant a writ of habeas corpus, and that upon the hearing thereof this court will fix bail in a reasonable suin, and that upon the giving of such bail the petitioner be discharged from 'said jail and from said illegal and unauthorized imprisonment.
    In support of said petition there is filed in this court a transcript of the evidence taken at a preliminary hearing on a charge of murder against petitioner before the county judge of Nowata county, and the affidavits of George A. Walters, Joe Crittenden. Mack Welch, C. C. Poterfield, Denis Holland, and himself. The presence of the petitioner in this court was expressly waived, due and proper notice having been given the county attorney as required by law.
    
      Tillotson & Humphrey, for petitioner.
    
      Charles L. Moore., for the State.
   PER CURIAM.

Prom a careful examination of the evidence offered in support of the petition herein, this court is of the opinion that, under section 5770, Wilson’s Rev. & Ann. St. 1903, the petitioner is entitled to be admitted to bail in this case; and this court, therefore, fixes the amount of bail herein at the sum of $10,000, to be approved by the clerk of the district court of Nowata county.

It is therefore ordered by this court that a mandate issue to the proper authorities of Nowata county, Obla., admitting petitioner to bail in the sum' aforesaid.  