Ex parte Frey

Ex parte Frey
1947 OK CR 134
187 P.2d 253
85 Okl.Cr. 198
Decided: 11/19/1947
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Bail-When One Charged With Capital Offense May Be Admitted to Bail. Under Constitution, art 2, § 8, declaring "all persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great, " one charged with capital offense may be admitted to bail prior to trial if the proof of guilt is not evident, nor the presumption thereof great, and one charged with murder is entitled as of right to a hearing on an application for admission to bail prior to trial.

2. Same-Burden Of Proof on Petitioner Applying for Bail. On the hearing of an application for bail by one informed against for murder, to determine whether or not the proof of guilt is evident or the presumption thereof great, the burden of proof is on the petitioner,

3. Same Petitioner Entitled to Bail in Sum Of $10,000 Where Evidence Showed He Acted in Self--Defense. On application for bail by writ of habeas corpus after commitment for murder, evidence showing that petitioner cut deceased, one time on the leg which caused him to bleed to death and testimony of petitioner that he acted only in self-defense without intending to cause serious bodily injury or death to the deceased, justified admitting the petitioner to bail in the sun, of $10,000.

Original habeas corpus Proceedings by Leo Prey to be admitted to bail. Petitioner ordered admitted to bail.

M. 0. Counts, of Hartshorne, and Clint Braden, of Wilburton, for petitioner.

Mac Q. Williamson, Atty. Gen., and Wayne Russell, Co. Atty., Bob Perdue and Jack Bradley, all of Wilburton, for respondent.

Page 199

JONES, P. J. This is a companion case to the case of Ex parte Burk, 85 Okla. Cr. 195, 187 P.2d 252, in which the petitioner, Leo Frey, seeks to be admitted to bail upon a murder charge pending against him in Latimer county.

The petitioner, Leo Frey, testified at length concerning the altercation which resulted in the death of Lawrence Riley. It is his contention that the proof of guilt is not evident, nor the presumption great that he is guilty of murder. The undisputed facts as shown by the evidence at the preliminary examination and before this court show that the deceased and the petitioner, Leo Frey, were friends and had been drinking heavily the day of the alleged homicide. They had a fuss in one of the beer taverns over a woman, but the argument subsided and nothing further was said or done until later that evening.

Later that night while traveling in a truck together, Frey and the deceased, Lawrence Riley, had another argument ending in a fight in which Frey stuck his pocket knife into the deceased's leg which severed an artery, causing him to bleed to death a short while later. Frey testified that Riley started the fight with him and that he cut him on the leg with his knife without intending to cause him serious bodily injury, but solely to protect himself from the deceased, who was attempting to assault him.

Without commenting on the evidence, it is our conclusion that the petitioner has sustained the burden of showing that the proof of his guilt of murder is not evident, nor the presumption thereof great, and that petitioner should be admitted to bail in the reasonable sum of $10,000.