October 4, 1945. — The presumptions of the law are in favor of the citizen’s release on bail while awaiting trial. Thus Article 1, sec. 14, of the Constitution of Pennsylvania provides:
“All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great ...”
The constitutional provision was written when all murders of the first degree were punishable by death and the inquiry is therefore whether the case presents the aspects of first degree murder; not whether it may be first degree with the death penalty, because that would be clearly invading the province of the jury.
I cannot agree with the view of the majority that the language, “when the proof is evident or presumption great,” refers only to the guilt of the accused. Commonwealth v. Lemley, 2 Pitts. 362, 368 is cited on this point. Section 701 of The Penal Code of June 24, 1939, P. J. 872, 18 PS §4701 provides:
“All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree.”
The meaning of the constitutional provision refusing bail to a prisoner charged with murder where the presumption is great is evident. A murder apparently committed in the perpetration of one of the named felonies classifies itself. It is first degree and the offense is not bailable. Murder by poison or lying in wait is not so readily demonstrated; yet ordinarily little evi*257dence is necessary to disclose a killing in one of these especially wicked fashions. Again the prisoner is not entitled to bail.
Only when the Commonwealth relies upon a wilful, deliberate and premeditated killing is there difficulty in determining whether the accused is entitled to bail. Of course the Commonwealth ought not to be compelled to disclose its complete case in the preliminary inquiry. Equally apparent is the principle that the court need not be convinced beyond a reasonable doubt. It is sufficient if proof be adduced which would move the court to sustain a conviction of murder in the first degree. This is the rule of the leading case of Commonwealth ex rel. v. Keeper of the Prison, 2 Ashmead 227, 234, cited by the majority.
But there must be some evidence pointing toward a wilful, deliberate, and premeditated killing. It will not do to say merely that the language of the Constitution, “where the proof is evident”, refers only to the guilt of the defendant. The evidence must indicate his guilt of this type of murder. The presumption of murder arising from felonious homicide arises no higher than second degree: Commonwealth v. Drum, 58 Pa. 9; Commonwealth v. Tompkins, 267 Pa. 541. In the present case the Commonwealth relies upon defendant’s use of a deadly weapon upon a vital part of the body; but this raises no presumption of first degree murder: Commonwealth v. Troup, 302 Pa. 246.
From the evidence produced I do not find the indicia of a capital case. In the two scuffles between defendant and the deceased which occurred within the tavern the defendant was not the aggressor. According to the record the accused told the deceased to leave him alone or defendant would “Let him have it”. This was not threat but warning. The deceased was ejected by the proprietor. According to the Commonwealth’s evidence the defendant shot deceased without the tavern when deceased was “grabbing” for defendant’s throat. Ap*258parently deceased had waited for defendant. There is no evidence of prior threats and no evidence of flight.
The Commonwealth may have evidence of a wilful, deliberate, and premeditated killing but I do not find it in the evidence. Entertaining these views I would admit defendant to bail.