I concur in the rule adopted from 1 Bailey on Habeas Corpus, 471.
Upon a petition for a release on bail, the general rule is that the petitioner must bring himself within the law under which he claims the right to bail, and the rule obviously casts upon him the burden of proof in capital cases of showing that the proof is not evident and the presumption not great. Ex parte Hammock, 78 Ala. 414; Ex parte Troia, 64 Cal. 152, 28 Pac. 231; Rigdon v. State, 41 Fla. 308, 26 South. 711; Brown v. State, 147 Ind. 28, 46 N. E. 34; Ex parte Finlen, 20 Nev. 141, 18 Pac. 827; Ex parte Springer, 1 Utah, 214; State v. Crocker, 5 Wyo. 385, 40 Pac. 681; Ex parte Nathan (Fla.), 50 South. 38; State v. Hedges, 177 Ind. 589, 98 N. E. 417; State v. District Court, 35 Mont. 504, 90 Pac. 513; State v. Kauffman, 20 S. D. 620, 108 N. W. 246. The rule is simply one of procedure, and has no relation to the rule of the presumption of innocence, which must accompany the accused at every stage of the case. The matter of bail has reference to the question of procedure insuring the presence of the accused at the trial of the issues of guilt or innocence. The order of the committing magistrate is presumed correct until overcome, and the state may rest upon such presumption, thereby main-*155taming the burden cast upon it until the accused has by the evidence overcome such presumption. The presumption of correctness following the order denying bail has no reference whatever to the guilt or innocence of the accused of the ■charge, and like the filing of an indictment or information, it, as they, does not add to the strength of the proof or the presumption to be drawn therefrom. Such order denying bail is no evidence of guilt at any stage of the case, and no inference ■of guilt can be drawn therefrom, but when it has been made by an officer authorized by law to make the same, it must be considered properly and regularly made by such authority until the contrary is made to appear, and the burden is upon one ■denying its correctness to show wherein it is incorrect. In so far as the majority opinion conflicts with these views, I ■dissent.
I am of opinion the accused has failed to overcome the presumption accompanying.the order denying him bail; that the ■evidence respecting the commission of the homicide is insufficient in character and weight to overcome the presumption of the correctness of the order denying bail. I do not concur in the order admitting the appellant to bail.