
    Ex parte HICKERSON.
    No. A-11720.
    April 30, 1952.
    (244 P. 2d 349.)
    
      Hill & Nix, McAlester, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BRETT, P. J.

This is an original proceeding in habeas corpus by petitioner Willa Dean Hickerson for bail. The petition was filed herein on February 22 and set for hearing on February 23, 1952 at 10:00 a.m. The verified complaint of the petitioner alleges that she is being held on a complaint pending in the justice of the peace court of E. W. Thomas on a charge of murder. She further alleges that she is being unlawfully detained, without bail, in the McAlester General Hospital, at McAlester, Oklahoma, by the sheriff of Pittsburg county, Oklahoma. She further alleges that no preliminary hearing has been had and no date set therefor. Moreover, it is alleged that the proof of guilt is not evident, nor the presumption thereof great.

It further appears in her petition that application for bond was made before Honorable W. A. Lackey, judge of the district court of Pittsburg county, Oklahoma, and bond therein denied. It will not be necessary to go into a detailed discussion of the evidence offered at the hearing herein. It suffices to say that the petitioner testified in her own behalf herein, which she did not do before Judge W. A. Lackey, who had only the state’s case before him, which supported therein a case of probable cause or belief that she was guilty of the charge of murder. From the evidence, it appears that the present condition of petitioner’s health is bad and that she is in need of nursing care and her health will probably be further impaired if her immediate incarceration in the antiquated Pittsburg county jail is continued. In having the petitioner’s evidence we thus have a predicate for bail not available to Judge Lackey. It has been repeatedly held that the right to bail in a capital case is absolute, unless proof of guilt is evident or presumption thereof great that the defendant is guilty as charged, and that in case of conviction he will probably receive a sentence o2 life or death. Ex parte Louis, 85 Okla. Cr. 427, 188 P. 2d 710. Testimony being taken herein we were of the opinion that bail should be granted in the sum of $20,000.

This court was advised preliminary hearing would be waived and that the information would immediately be filed in the district court of Pittsburg county, Oklahoma.

It was therefore ordered that the writ of habeas corpus be granted and petitioner be admitted to bail in the sum of $20,000 in said cause pending against her, said bond to be conditioned as provided by law, to hold petitioner for trial in the district court and to be approved by the district court clerk of Pittsburg county, Oklahoma, and upon execution and approval of said bond petitioner is to be released from custody, subject to the further order of the trial court.

POWELL, J., concurs.  