Ex Parte McLendon , 84 Okla. Crim. 252 ( 1947 )

BRETT, J.

The petitioner, Claude McLendon, was charged in Choctaw county, Okla., with the crime of murder. At the preliminary examination he was held to the district court without bail and an information was filed in the district court of Choctaw county, Okla.

Application was made to the district court of Choctaw county for writ of habeas corpus and hearing had . thereon, on March 19, 1947, and the petitioner denied bail and he is now confined in the county jail of Choctaw county, Okla.

He has filed his application in this court for writ of habeas corpus, stating that he is not guilty of the homicide as charged, and that the proof of his guilt of the charge of murder is not evident nor the presumption thereof great.

This petition came on for hearing in this court by assignment on April 30, 1947.

It is unnecessary to give a detailed statement of the testimony presented before this court. A complete transcript of the testimony taken at the preliminary hearing and upon application to the district court for writ of habeas corpus therein is attached to the petition and has been carefully examined by this court. The evidence in the transcript of the proceedings below discloses there were no eyewitnesses to the killing, and the positive proof, in relation thereto, consisted entirely of the petitioner’s testimony as to the facts of the killing. Though his testimony is conflicting, in spite of that fact, standing alone and uncontroverted, it is sufficient to raise the presumption of a probable case of self-defense.

This testimony, standing uncontroverted, is sufficient to entitle the petitioner to the writ and the same is granted and said Claude McLendon is ordered to be released from the common jail of Choctaw county, upon the giving of bail in the sum of $10,000, to be approved by the court clerk of Choctaw county, Okla.

In keeping with this order, the writ is hereby granted to the above petitioner, in compliance with the order as above stated.

BAREFOOT, P. J., and JONES, J., concur.