Ex Parte Smith

1925 OK CR 351, 237 P. 464, 31 Okla. Crim. 132, 1925 Okla. Crim. App. LEXIS 329

• Court: Court of Criminal Appeals of Oklahoma
• Decided: July 3, 1925
• Docket: No. A-5625.
• Status: Published

Opinion

PER CURIAM.

The petitioners stand charged in the superior court of Okmulgee county with the murder of one Ingram. After the filing of the petition for a writ of habeas corpus here, this court ordered a rule to show cause why the writ should not issue, returnable July 1, 1925.

Upon the return day of the rule, the evidence on the part of the state, taken at the preliminary examination, supported by evidence taken on the return day of the rule, makes a prima facie showing of probable cause for believing that the petitioners are guilty of murder and are not entitled to bail.

In an application for bail in a homicide case, where the state has introduced evidence indicating that the accused is guilty of murder, the burden is upon the petitioners to make a counter showing of justification or self-defense. Ex parte Butler, 15 Okla. Cr. 111, 175 P. 132; Ex parte Garvin, 18 Okla. Cr. 17, 192 P. 363.

To show this the petitioner should take the stand at the preliminary hearing, or at the hearing on the application for bail, and submit to cross-examination, disclosing the nature of his defense. Ordinarily, ex parte affidavits are inadequate for this purpose.

Applying this uniform rule of practice to the case here, the showing made by the petitioners is insufficient, and bail is denied.