
    Ex parte NORMAN ELMER DRAKE et al.
    No. A-11192.
    Feb. 16, 1949.
    (203 P. 2d 719.)
    King & Wadlington, of Ada, for petitioners.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and W. G. Long, Co. Atty., of Ada, for respondents.
   JONES, P. J.

TMs original action in habeas corpus was instituted by the petitioners, Norman Elmer Drake and Glaydestel Drake, for the purpose of being admitted to bail on a charge of rape in the first degree now pending against them in the district court of Pon-totoc county.

The verified petition alleges that petitioners were jointly charged in a criminal complaint filed before a justice of peace in Pontotoc county on December 28, 1948, with having committed the crime of rape in the first degree; that after a preliminary examination was held before said justice of peace, both of said petitioners were ordered held to answer said charge of rape in the first degree in the district court of Pontotoc county, and were bound over for trial in said district court without bail; that thereafter a hearing was held before the district court of Pontotoc county in which each of said petitioners testified on his own behalf to be admitted to bail pending the trial of said cause; that at the conclusion of said hearing, the district court of Pontotoc county made an order refusing to admit petitioners to bail. Petitioners further alleged that they are entitled to a reasonable bail for the reason that they are not guilty of said alleged offense of rape in the first degree and that the proof of guilt is not evident nor presumption thereof great.

The case was submitted to this court upon a transcript of the evidence taken at the preliminary examination and before the district court of Pontotoc county at the hearing on petitioners’ application for bail.

It is unnecessary, in view of the fact this case will have to be tried, for us to give a detailed statement of the evidence. It is sufficient to say that there is sharp conflict in the evidence of the petitioners and that of the prosecutrix. There is no conflict in the fact that the prosecutrix and another girl friend of hers went with the petitioners voluntarily on the night of the alleged occurrence and with them visited several beer parlors. One of the petitioners is a married man, 27 years of age, and the other is an unmarried youth, 18 years of age. They have each lived in the community near Strat-ford in Pontotoc county all of their lives, and have never been charged with any sort of criminal offense before the instant case.

In view of all the facts and circumstances in the record, we have come to the conclusion that under the law, the petitioners are entitled to bail in the reasonable sum of $5,000.

It is therefore ordered that the petitioners and each of them are hereby admitted to bail in the sum of $5,-000 each, for their appearance for trial before the district court of Pontotoc county, said bond to be conditioned as provided by law and approved by the county clerk of Pontotoc county.

BAREFOOT and BRETT, JJ., concur.  