Ex parte McIntosh

Ex parte McIntosh
1948 OK CR 127
201 P.2d 258
88 Okl.Cr. 162
Decided: 12/15/1948
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Bail Right to Bail Where Prisoner Suffering From Fatal Disease. On application to the Criminal Court of Appeals for bail by writ of habeas corpus after commitment for a capital offense by a justice of the peace, when it is made clearly to appear, by the testimony of competent, reputable physicians who have examined the physical condition of the prisoner at the time the application is made, that there is strong ground for the opinion that continued confinement would cause the disease from which the prisoner is then suffering to terminate fatally, he should be released on bail.

2. Same.--Petitioner Held Entitled to Bail Provided He Is not Tried Within Specified Time. Held, that the court is of the opinion that petitioner's confinement until January 1, 1949, pending trial, would not further impair his health or endanger his life, but that in the event trial is not had by that time said district court should allow petitioner bail in a reasonable sum.

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Original proceeding by Jesse, McIntosh for writ of habeas corpus on the ground that he is illegally restrained of his liberty by C. P. Burford, Warden of the Oklahoma State Penitentiary at McAlester, Oklahoma. Writ denied.

Welch, Bounds & Kile, of Hugo, for petitioner.

Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.

BRETT, J. The petitioner, Jesse McIntosh, was charged by verified complaint with the crime of robbery with firearms before Honorable Carl Prewitt, county judge of McCurtain county, Oklahoma, sitting and acting as examining magistrate; and on the 3rd day of November, 1948, after preliminary hearing, petitioner was bound over without bond to the district court where he now stands charged by information on said charge.

Thereafter, and on the 5th day of November, 1948, said Jesse McIntosh having made application to the district court for a writ of habeas corpus for admission to bail and upon hearing the same said application was by the court denied. Thereafter, and on the 5th day of November, 1948, application was made to the district court of McCurtain county for leave of Sheriff C. H. Roan to transport the petitioner to the State Penitentiary at McAlester for safekeeping and in order that proper facilities for medical aid and treatment might be provided for the petitioner pending his trial in the district court of McCurtain county, Okla. On the hearing of said application by evidence and stipulation of the parties, it appeared that Jesse McIntosh is addicted to the use of narcotics and that he is suffering with acute tuberculosis. It appeared further to the court that the facilities of the county jail of McCurtain county, Okla., are totally inadequate to properly care for the said Jesse McIntosh

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while therein confined and awaiting trial. It further appeared that adequate facilities are available at the penitentiary for giving the said Jesse McIntosh proper medical care and treatment as well as to safely keep him until his appearance is demanded for trial in McCurtain county. Thereupon the said court ordered C. H. Roan, sheriff of McCurtain county, Okla., to immediately transport said Jesse McIntosh to McAlester, Okla., and to deliver him to the warden of the State Penitentiary at McAlester, Okla., for safekeeping and care pending trial.

In his petition for a writ of habeas corpus herein, petitioner first contends that his guilt is not evident, nor the presumption thereof great, and, second, that his physical condition is such that his health will be seriously impaired and death will probably result from confinement in either the penitentiary where he is now confined or the county jail of McCurtain county, and that under the facts he is unlawfully restrained and entitled to be admitted to bail pending trial to answer said charge of robbery with firearms. The transcript of the evidence taken before Honorable Carl Prewitt, county judge and committing magistrate, is introduced as evidence herein. It reveals an aggravated case of robbery with firearms of Dr. H. W. Williamston and his wife at Idabel, Okla. Briefly the defendant and his accomplice broke into Dr. Williamston's home some time after 2 o'clock on the morning of September 25, 1948, beat Dr. and Mrs. Williamston into a state of temporary unconsciousness with an automatic pistol. After awhile, Dr. Williamston regained consciousness and was forced to open his safe and deliver over to the defendant and accomplice $1,800 in cash and approximately $1,200 worth of jewelry. Thereafter, the petitioner put pillow cases

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over their heads, tied them up, threatening to kill them and otherwise misused and abused them. The petitioner was later identified by Dr. Williamston as a former patient of his.

At the hearing before this court it was further made to appear that Jesse McIntosh was formerly convicted of robbery in the State of Oklahoma in 1925, in 1935 was convicted of violating the Narcotic Act, and in 1944 was convicted of the crime of robbery with firearms in Lamar county, Texas.