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, 20 Okla. 167, 93 Pac., which we quote and approve, commencing at page 980. Said court held:
"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 *Page 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, 78 Ala. 414; Ex parte Rhear, 77 Ala. 92;Ex parte Vaughn, 44 Ala. 417. On this question there is little conflict in the authorities. Alabama, California, Florida, Indiana, Nevada, New Jersey, New York, Utah, and Wyoming all support the proposition. Texas seems to be the only state placing the burden of proof upon the state to show that the offense is a capital one and that the proof is evident; but even there the doctrine of the text prevailed until it was upset in the case ofEx parte Bud Newman, 38 Tex.Crim. 164, 41 S.W. 628, 70 Am. St. Rep. 740. We believe that, with the burden of proof on the petitioners, if, after hearing the whole evidence introduced on the application for bail, it is insufficient to generate in the mind of the court a reasonable doubt whether the accused committed the act charged, and in doing so they were guilty of a capital offense, bail should be refused. But we do not wish to be understood as laying this down as a hard and fast rule, to which there may be no exceptions. There may be exceptional circumstances, such as the serious and probably fatal injury to health, or unusual and protracted delay upon the part of the state in bringing the prisoner to trial, that may warrant the court hearing all the evidence to admit to bail, when the proof of guilt is evident or the presumption thereof is great. The admission to bail, however, under these circumstances, is not a constitutional right, but a matter resting on the sound judicial discretion of the trial judge, who should not grant it save under extraordinary circumstances."
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 *Page 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, 56 Miss. 161; Lester v.State, 33 Ga. 192; U.S. v. Kie (Alaska) 4 W.C. Rep. 553; Ex parteMeador (Tex. Cr. App. 1892) 20 S.W. 371; Com. v. Semmes, 11 Leigh (Va.) 666; Archer's Case, 6 Grat. (Va.) 705 — that the right to give bail is herein granted the petitioner for the sole reason that he is now suffering from pneumonia and other physical ailments, and that his continued confinement in said jail will greatly injure his health and probably result in his death; and this court fixes the amount of bail herein at the sum of $10,000, which is fixed at the above-stated amount upon proof showing the plaintiff to be financially unable to furnish bail in a larger sum.
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. *Page 600