
    Ex parte LEO FREY.
    No. A-10950.
    Nov. 19, 1947.
    (187 P. 2d 253.)
    M. O. Counts, of Hartsborne, and Clint Braden, of Wilburton, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Wayne Russell, Co. Atty., Bob Perdue and Jack Bradley, all of Wilburton, for respondent.
   JONES, P. J.

This is a companion case to the case of Ex parte Burk, 85 Okla. Cr. 195, 187 P. 2d 252, in which the petitioner, Leo Frey, seeks to be admitted to bail upon a murder charge pending against him in Latimer county.

The petitioner, Leo Frey, testified at length concerning the altercation which resulted in the death of Lawrence Riley. It is his contention that the proof of guilt is not evident, nor the presumption great that he is guilty of murder. The undisputed facts as shown by the evidence at the preliminary examination and before this court show that the deceased and the petitioner, Leo Frey, were friends and had been drinking heavily the day of the alleged homicide. They had a fuss in one of the beer taverns over a woman, but the argument subsided and nothing-further was said or done until later that evening.

Later that night while traveling in a truck together, Frey and the deceased, Lawrence Riley, had another argument ending in a fight in which Frey stuck his pocket knife into the deceased’s leg which severed an artery, causing him to bleed to death a short while later. Frey testified that Riley started the fight with him and that he cut him on the leg with his knife without intending to cause him serious bodily injury, but solely to protect himself from the deceased, who was attempting to assault him.

Without commenting on the evidence, it is our conclusion that the petitioner has sustained the burden of showing that the proof of his guilt of murder is not evident, nor the presumption thereof great, and that petitioner should be admitted to bail in the reasonable sum of $10,000.

It is therefore ordered that the petitioner be admitted to bail in the sum of $10,000, said bond to be conditimed as provided by law, to be approved by tbe court clerk of Latimer county; and that when said bond is given and approved by tbe court clerk of said county that petitioner be discharged from custody.

BAREFOOT, P. J., and BRETT, J., concur.  