99 P. 161 | Okla. Crim. App. | 1909
The question before this court is: Is the plaintiff entitled to bail upon the testimony as shown by the transcript of the testimony adduced at the preliminary examination before said committing magistrate under section 8, art. 2 (Bunn's Ed. § 17), of the Bill of Rights of the state of Oklahoma? which reads:
"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."
The question involved in this case has been fully decided by the Supreme Court of this state in a well-considered case and able written opinion, written by Mr. Justice Kane, in the case ofIn re Thomas,
"Primarily a person charged with a capital offense cannot demand bail as a matter of right, since, upon ascertaining the character of the charge against the accused, the next question *598
would be as to the degree of proof and the nature of the presumption of guilt. Upon an application to the Supreme Court for bail, by writ of habeas corpus, after commitment for a capital offense by a justice of the peace, the burden is upon the petitioner to show that he is illegally deprived of his liberty — citing Ex parte Hannock,
The undisputed proof in this case shows that the petitioner is now suffering with pneumonia and other ailments, and that by reason of bad condition of the county jail of Bryan county, it being poorly heated, lighted, and ventilated, and having no sanitary provisions or regulations, the continued confinement of the petitioner therein would endanger his health, and perhaps his life. While this court is expressing no opinion, and does not comment, upon the evidence respecting the guilt or innocence of the plaintiff of the crime charged against him, we will only *599
say that, following the rule laid down in the case of In reThomas et al., supra, and in the opinion of the case of UnitedStates v. Jones, 3 Wn. (C.C.) 224, Fed. Cas. No. 15,495, in which the court held: "Where an application for bail showed that the prisoner's health was bad, his complaint pulmonary, and that, in the opinion of his physician, confinement during the summer might so far increase his disorder as to render it ultimately dangerous, the court said: `The humanity of our laws, not less than the feelings of the court, favor the liberation of a prisoner upon bail under such circumstances. It is not necessary, in our view of the subject, that the danger which may arise from his confinement should be either immediate or certain. If, in the opinion of a skillful physician, the nature of his disorder is such that the confinement must be injurious and may be fatal, we think he ought to be bailed.' Bail should not be granted on the ground of bad health, unless it be rendered probable by testimony that confinement has produced, or is likely to produce, fatal or serious results." Ex parte Pattison,
It is therefore ordered by this court that a mandate issue to the proper authorities of Bryan county, Okla., admitting plaintiff to bail in the sum aforesaid.
FURMAN, PRESIDING JUDGE, and DOYLE, JUDGE, concur. *600