
    In re FRED RECTOR.
    No. A-8047.
    Opinion Filed Jan. 3, 1931.
    (294 Pac. 823.)
    
      Tillman & Tillman, for petitioner.
    J. Berry King, Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in babeas corpus. Petitioner alleges be is unlawfully restrained in tbe city jail of Muskogee by tbe sheriff of Adair county upon a commitment of a magistrate denying petitioner bail on a charge of robbery; that tbe proof of bis guilt is not evident nor tbe presumption great. Attached to tbe petition is a transcript of tbe testimony taken before tbe committing magistrate.

Tbe transcript of tbe testimony discloses that in October, 1930, a bank at Westville, Adair county, was robbed by two men who came into the bank and with firearms held up tbe employees and tbe board of directors which was then in session and took about $3,200. As they left tbe bank and were entering a car parked nearby, one of tbe employees opened fire and so seriously wounded Tom Hayworth, one of tbe robbers, that be died. One of the officers of tbe bank was shot in tbe band. Tbe other person who assisted in tbe actual robbing of tbe bank escaped and has not been apprehended.

The theory of tbe state is that petitioner aided and abetted in the robbery; that be was in a car not far from the town of Westville to assist and did assist in tbe escape of tbe robbers. There is evidence to sustain tbe committing magistrate in his finding of sufficient cause to' bold petitioner as a participant in tbe robbery. By chapter 44, Session Laws 1925, robbery with firearms is made a capital offense. In a capital offense, where tbe proof is evident or tbe presumption great, the accused is no:t entitled to bail. Article 2, § 8, State Const; section 2921, Comp. iStat. 1921. After commitment, denying bail, by a magistrate, tbe burden is on petitioner to show that he is illegally deprived of Ms liberty. Ex parte Stone, 41 Okla. Cr. 12, 289 Pac. 785; Ex parte Ditmore, 42 Okla. Cr. 111, 274 Pac. 697.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.  