Ex Parte Colby and Stovall ( 1911 )

As this case must be tried by a jury, and as we are satisfied that all of the material testimony has not been presented to us, we deem it best to refrain from discussing the evidence, further than to say that, as presented by the record before us, we do not believe the defendants are entitled to bail.

The testimony introduced, taking the most favorable view for the defendants, presents a case in which the defendants upon one side, and the trustees of Washington school district with some of the patrons of the school on the other side, armed with deadly weapons, voluntarily and willingly engaged in a mutual combat, having reason to believe that such conflict would result in death or serious bodily injury to some of the parties engaged therein. When death ensues from such a conflict, the killing is murder. See Boutcher v. State, 4 Okla. Crim. 576. There is no testimony in this record which either mitigates or justifies the homicide.

The writ of habeas corpus is therefore discharged, and defendants are remanded to the custody of the sheriff of McClain county to answer the charge of murder pending against them.

ARMSTRONG and DOYLE, JJ., concur.