Ex Parte Smith

Section 8 of the Bill of Rights of our Constitution is as follows (Bunn's Ed. § 17):

"All persons shall be bailable, by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great."

This clause of the Constitution has been construed by the Supreme Court of this state in the case of In re Thomas,20 Okla. 167, 93 P. 983. Mr. Justice Kane there said:

"We believe that, with the burden of proof on the petitioners, if, after hearing the whole evidence introduced on the application for bail, it is insufficient to generate in the mind of the court a reasonable doubt whether the accused committed the act charged, and in doing so they were guilty of a capital offense, bail should be refused."

The rule as to the burden of proof in such cases was followed by this court in Re Watson, 1 Okla. Crim. 595, 99 P. 161. Upon hearing the argument of counsel when this case was submitted to the court, all of the affidavits filed were not read at the time, and we were inclined to the opinion that bail should be allowed upon the facts of the killing; but, upon a careful consideration of these affidavits, we have decided not to allow bail upon this branch of the case. We do not say that upon the final trial of this case a state of facts may not be developed which may raise the issue of manslaughter. We are simply passing upon the case as now presented to us. To prove that such a condition of affairs existed as might bring about a state of mind on the part of defendant which might raise the issue of manslaughter is one thing — to prove that this state of mind did exist is another thing. To reduce an unlawful killing from murder to manslaughter two things must concur: First, conditions must be shown to exist which would be calculated to produce in the mind of a person of ordinary prudence and self-control, such rage, fury, or terror as would render the mind of the defendant incapable of forming a premeditated design to effect the death of the person slain, or of any other human being; second, it must also be shown that the defendant was, in fact, at the time of the homicide laboring under such rage, fury, or terror. Neither of these conditions, without the other, would be sufficient to reduce an unlawful killing to manslaughter. If the jury should be satisfied beyond a reasonable doubt that the defendant was guilty of an unlawful killing, but entertained a reasonable doubt as to whether his offense was murder or manslaughter, it would be their duty to give the defendant the benefit of such doubt, and convict him of that grade of offense of which they had no doubt. Our views as to the distinction between murder and manslaughter are fully expressed in Morris v. Territory, 1 Okla. Crim. 617,99 P. 760, and need not be repeated here. We will not discuss the evidence, lest it might influence the final trial. We are only passing upon the sufficiency of the evidence submitted to us.

On the second ground relied upon we are of opinion that bail should be granted. Dr. J.D. Scott states in his affidavit that he has examined the defendant, and found him in a greatly weakened condition, with one lung almost consumed by tuberculosis, and that unless he is given plenty of fresh air he will not live many days. Dr. W.D. Atkins states in his affidavit the condition of the defendant about as it is stated by Dr. Scott, and further adds that unless defendant is released from jail, his death will soon occur. James King, the sheriff of Hughes county, confirms the statement of the physician as to the condition of defendant, and adds that "he is losing his health rapidly." D.A. Eoff, the jailer of Hughes county, also files an affidavit as to the bad health of defendant. These affidavits are clear, direct, and well-nigh conclusive. It is generally known throughout the eastern part of the state that the county jails are inadequate for the care of the sick and the afflicted, and this court is authorized to take judicial notice of that fact. As to the power and duty of the courts to grant bail pending final trial upon the ground of sickness of a defendant see In re Thomas, 20 Okla. 167,93 P. 982, and In re Watson, 1 Okla. Crim. 595, 99 P. 161.

The county attorney of Hughes county has recommended that the defendant be granted bail in this case in the sum of $10,000, but, in view of the facts presented to us, we do not think this amount sufficient. It is therefore ordered that the defendant be allowed bail in the sum of $15,000, to be approved by the clerk of the district court of Hughes county, with good and sufficient sureties, as the law directs.

BAKER and DOYLE, JUDGES, concur.