This is an appeal from a judgment on writ of habeas corpus, rendered in chambers by the Hon. Joseph Abbott, judge of the Twenty-eighth Judicial District of the State. We deem it sufficient to say that, after a careful examination of the record, we do not believe the court below erred in refusing bail to the applicant.
Our attention is directed, in the brief of counsel for appellant, to his first bill of exceptions, which shows to the court that the district judge before whom the trial on the writ of habeas corpus was had, held that the applicant should introduce his evidence first, and show himself entitled to bail. As no uniform practice prevails among the district judges of the State, and as much time is often consumed in determining as to what is the proper practice in such cases, we deem it not amiss to state that we fully concur in the rulings of the court below on this point.
The indictment against him being for a non-bailable offence, prima facie justified his detention in prison. He undertook to show that he had a constitutional right to be *554admitted to bail, — i.e., that the proof of his guilt was not evident. This could only be shown by exhibiting the proof. Ex parte Heffren, 27 Ind. 87.
If it appears by the return and the papers attached that the party stands indicted for a capital offence, the statute provides that the judge or court shall nevertheless proceed to hear such testimony as may be offered on the part of the applicant and the State, and may either remand the defendant or admit him to bail, as the law and the case may justify. The statute also provides that the applicant shall have the right to open and conclude, by himself or counsel, the argument upon the trial under habeas corpus.
We believe that when a person is brought before a court of competent jurisdiction on a writ of habeas corpus, if it appear by the return of the papers attached that. he is indicted for a capital offence, it is incumbent on him to show that he is entitled to bail; if he declines to introduce any evidence, bail should not be allowed him. And we also believe that the same rule applies when the return to the court shows that he is held by virtue of a commitment from an examining court, for a capital offence.
When it is shown that an applicant is held by a warrant of commitment, or a copias issued on an indictment for such an offence, it presupposes an examination into the facts, and throws the burden of proof upon him to show that his restraint is illegal, and that he is entitled to bail. The judgment of the district judge of the Twenty-eighth District in refusing bail to applicant is affirmed.
Affirmed.