Ex parte Cross

Ex parte Cross
1939 OK CR 94
93 P.2d 20
67 Okl.Cr. 143
Decided: 08/04/1939
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Bail-Burden of Proof on One Charged With Murder and Applying for Bail. On the hearing of an application for admission to bail after commitment for a capital offense, to determine whether or not the proof of guilt is evident or the presumption thereof great, the burden of proof is one the petitioner.

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2. Same-Evidence Held to Show Accused Entitled to Bail. Evidence considered, and held sufficient to show that petitioner is entitled to be admitted to bail.

Ex parte proceeding by Ira Cross for a writ of habeas corpus to the end that he be let to bail. Bail allowed.

Billingsley & Kennerly, of Wewoka, for petitioner.

J. M. Huser, Asst. Co. Atty., of Wewoka, for respondent.

DOYLE, P. J. In this proceeding petitioner, Ira Cross, by his attorneys has presented to this court a petition, alleging that he is unlawfully imprisoned in the county jail of Seminole county by Bice Merrell, sheriff of said county, having been charged with the murder of one John W. Taylor, by indictment duly returned by a grand jury; he is now so held in said county jail to await the action of the superior court of Seminole county without bail; that on a habeas corpus proceeding, the judge of said superior court denied bail and remanded petitioner to the custody of said sheriff.

Petitioner further alleges that he is not guilty of the crime of murder as charged, and that the proof of his guilt of the charge of murder is not evident, nor the presumption thereof great.

By agreement the petitioner in charge of respondent, and counsel for both parties appeared before the court and a hearing was had, wherein petitioner testified as a witness in his own behalf. In addition to this testimony numerous affidavits of persons purporting to be eyewitnesses to the tragedy were filed, on the part of the petitioner, also on the part of the state.

Upon the evidence adduced petitioner relies on the case of Cheadle v. State, 11 Okla. Cr. 566, 149 P. 919, 920, L.R.A. 1915E, 1031, wherein this court heId:

"A person who commits a homicide while so drunk as to be incapable of forming a premeditated design to

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kill, if he had formed no purpose to commit the crime prior to t he time he became so intoxicated, is not guilty of murder, but is guilty of manslaughter in the first degree."

Since a premeditated design to kill, thus defined, is what distinguishes a nonbailable from a bailable crime, it is of this particular fact that the proof must be evident and the presumption great.

The rule is well settled that on application for admission to bail by one held under a commitment for the crime of murder, the burden of proof is one the petitioner to show that the proof of his guilt is not evident nor the presumption thereof great.

Since the weight and effect of all the testimony will be submitted to a jury, and should be so submitted without an intimation from this court, or the trial court as to its probative force, we refrain from expressing our views, so far as it relates to the weight and credibility of the evidence offered in this proceeding.

Without entering into a discussion of the facts and circumstances in evidence, we deem it sufficient to say that we find that the petitioner herein is entitled to be admitted to bail.