Ex parte McIntosh
| Decision Date | 15 December 1948 |
| Docket Number | A-11167. |
| Parties | Ex parte McINTOSH. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Original proceeding by Jesse McIntosh for writ of habeas corpus on the ground that he is illegally restrained of his liberty by C P. Burford, Warden of the Oklahoma State Penitentiary at McAlester, Oklahoma.
Writ denied.
Syllabus by the Court.
1. On application to the Criminal Court of Appeals for bail by writ of habeas corpus after commitment for a capital offense by a justice of the peace, when it is made clearly to appear, by the testimony of competent, reputable physicians who have examined the physical condition of the prisoner at the time the application is made, that there is strong ground for the opinion that continued confinement would cause the disease from which the prisoner is then suffering to terminate fatally, he should be released on bail.
2. Held, that the court is of the opinion that petitioner's confinement until January 1, 1949, pending trial, would not further impair his health or endanger his life but that in the event trial is not had by that time said district court should allow petitioner bail in a reasonable sum.
Welch, Bounds & Kile, of Hugo, for petitioner.
Mac Q Williamson, Atty. Gen. and Sam H. Lattimore, Asst. Atty Gen., for respondent.
The petitioner Jesse McIntosh was charged by verified complaint with the crime for robbery with firearms before Honorable Carl Prewitt, County Judge of McCurtain County, Oklahoma sitting and acting as examining magistrate; and on the third day of November, 1948, after preliminary hearing petitioner was bound over without bond to the district court where he now stands charged by information on said charge.
Thereafter, and on the 5th day of November, 1948, said Jesse McIntosh having made application to the District Court for a writ of habeas corpus for admission to bail and upon hearing the same said application was by the court denied. Thereafter, and on the 5th day of November, 1948, application was made to the District Court of McCurtain County for leave of Sheriff C. H. Roan to transport the petitioner to the State Penitentiary at McAlester for safe-keeping and in order that proper facilities for medical aid and treatment might be provided for the petitioner pending his trial in the District Court of McCurtain County, Oklahoma. On the hearing of said application by evidence and stipulation of the parties, it appeared that Jesse McIntosh is addicted to the use of narcotics and that he is suffering with acute tuberculosis. It appeared further to the court that the facilities of the county jail of McCurtain County, Oklahoma, are totally inadequate to properly care for the said Jesse McIntosh while therein confined and awaiting trial. It further appeared that adequate facilities are available at the penitentiary for giving the said Jesse McIntosh proper medical care and treatment as well as to safety keep him until his appearance is demanded for trial in McCurtain County. Thereupon the said court ordered C. H. Roan, Sheriff of McCurtain County, Oklahoma, to immediately transport said Jesse McIntosh to McAlester, Oklahoma, and to deliver him to the Warden of the State Penitentiary at McAlester, Oklahoma, for safe-keeping and care pending trial.
In his petition for a writ of habeas corpus herein, petitioner first contends that his guilt is not evident, nor the presumption thereof great and, second, that his physical condition is such that his health will be seriously impaired and death will probably result from confinement in either the penitentiary where he is now confined or the county jail of McCurtain County, and that under...
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