
    Ex parte BROWN.
    No. A-11763.
    May 14, 1952.
    (244 P. 2d 858.)
    Sam Colby, Madill, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., O. C. Barnes, County Atty. Marshall County, Madill, and Welch, Welch & Shaw, Special Prosecutors, Madill, for respondent.
   JONES, J.

This is an original action in habeas corpus by the petitioner, Earl Kenneth Brown, who is now imprisoned in the county jail of Madill, Oklahoma, where he stands charged by information with the crime of murder, allegedly committed on March 29, 1952.

Petitioner in this action contends that the proof of his guilt is not evident nor the presumption thereof great and that he is entitled to bail. Application had heretofore been presented to the district court of Marshall county and bail was denied. The case was submitted upon a transcript of the testimony taken at the preliminary examination together with the testimony of three witnesses presented before this court, including the testimony of defendant.

The proof of the state, although circumstantial, made a strong case against the defendant that he fired several shots into the home of one Robert Hughes and that one of these shots struck Mrs. Hughes in the right arm. Mrs. Hughes died about ten days later in the University Hospital at Oklahoma City. The evidence further showed that she had been in ill health for several years and had had two paralytic strokes. She was bedfast at the time the shot was fired which struck her in the arm.

The defendant testified that he was in the town of Madill at the time the state contended the shooting occurred. He was a son-in-law of the deceased and there had been some ill feeling between the parties.

We have come to the conclusion that the defendant is entitled to bail for the reason that the state has wholly failed to show that the shot which Mrs. Hughes received in her arm caused her death. No doctor testified and there was no evidence from which we could conclude that the shot which struck the invalid woman in the arm caused her death. So far as the record discloses she may have died from another stroke of paralysis or of a heart attack.

It is therefore ordered that the petitioner, Earl Kenneth Brown, be admitted to bail in the reasonable sum of $20,000. Said bond to be conditioned as required by law, to be approved by the court clerk of Marshall county and filed with said clerk as a part of the records in the case now pending against the petitioner.

BRETT, P. J., concurs.  