Ex Parte Christenberry

This is an original proceeding in habeas corpus instituted by the petitioner, Lester Christenberry, for the purpose of being admitted to bail upon a charge of murder now pending against him in the superior court of Okmulgee county.

The verified petition alleges that the petitioner is restrained in the county jail of Okmulgee county by reason of a commitment issued by an examining magistrate, and that he now stands accused of the crime of murder by information filed in the superior court of Okmulgee county but that proof of his guilt is not evident nor presumption thereof great. Attached to the petition and made a part thereof is a certified copy of the transcript of the proceedings had in the preliminary examination and also a certified copy of the transcript of the proceedings taken before the district judge of Okmulgee county in an application for bail, which application was denied by the district court of Okmulgee county.

At the time of the hearing before this court, the petitioner took the witness stand and testified at length and was cross-examined by the county attorney of Okmulgee county. The sheriff of Okmulgee county also testified concerning threats made to him by the deceased against the defendant. According to the testimony of the defendant, he shot the deceased in self-defense while the deceased was advancing upon him with a knife. The defendant testified that he shot twice to try to stop the deceased, and then shot a third time to kill him. The proof is undisputed that three shots were fired, and that only one of them took effect in the body of the deceased. The deceased lived about five hours after he was struck by the bullet.

We do not desire to make any comment upon the weight of the evidence, but it is our conclusion after an examination of the transcripts of the record heretofore mentioned and a consideration of the evidence presented in open court that the petitioner has made a sufficient showing to be entitled to bail. Ex parte Shirack, 82 Okla. Crim. 334, 169 P.2d 1022; Ex parte Sherrill, 9 Okla. Crim. 562, 132 P. 508; Ex parte Centell,38 Okla. Crim. 127, 259 P. 276.

It is therefore ordered that the petitioner be admitted to bail in the sum of fifteen thousand dollars, ($15,000), said bond to be conditioned as provided by law, to be approved by the court clerk of Okmulgee county; that when said bond is given and approved by the court clerk of said county that petitioner be discharged from custody.

BAREFOOT, J., concurs. DOYLE, J., not participating.