
    AARON BESHIRS, JR. v. STATE.
    No. A-2548.
    Opinion Filed November 10, 1915.
    Petition of Aaron Beshirs Jr., for writ of Habeas Corpus, to be let to bail.
    Bail allowed.
    McPherren & Cochran, for petitioner.
   PER CURIAM.

This is a petition for write of Habeas Corpus, by Aaron Beshirs, Jr., to be let to bail. Petitioner avers that he is unlawfully imprisoned and restrained of his liberty by John Phillips, sheriff of Bryan county; that the cause of such restraint is that on a preliminary examination he was held to answer to the district court of Bryan county on a charge of murder. Attached to the petition is a copy of the evidence taken upon the preliminary examination, which shows that the petitioner is a boy eighteen years of age; that on or about the 15th day of September, 1915, the petitioner while in an intoxicated condition struck the deceased with an empty bottle once upon the head; from the effect of which blow the deceased died the following day. That shortly before the blow was inflicted, the petitioner and the deceased were friendly. That nothing was said or occurred between them except that the petitioner'as he rode along behind Walter Smith, the deceased, said in substance that the brother of the deceased had tried to whip petitioner but could not do so, and that petitioner could whip them both.

In petitioner's affidavit he states, “That at the time it is claimed that he struck the said Walter Smith with a bottle, affiant had no intention of inflicting any injury of any kind on him, and at no time had any intention of killing the said Walter Smith, or causing him any bodily injury."

The question to be determined in this case is whether under the evidence introduced upon the preliminary examination the proof is evident or the presumption great, that a capital offense has been committed by the petitioner as to preclude him from being released on bail. The weapon used in the killing was not a deadly one, and where the weapon so used in killing a person is not one likely to kill, the killing is manslaughter, unless there was an actual intent and premeditated design to effect death.

On the undisputed facts in this case we are of the opinion that the petitioner is entitled to bail. It is therefore ordered by the court that petitioner be admitted to bail in the sum of Fifteen Thousand Dollars, bond to be conditioned as by law required. Said bond to be approved by the clerk of the district court of Bryan county.  