In this proceeding Virgil Clevenger, by his attorney, filed in this court on June 23, 1922, a petition wherein it is alleged that he is unlawfully restrained of his liberty and imprisonment in the county jail of Pottawatomie county, by Grover Butler, sheriff of said county, under and by virtue of a commitment issued by a committing magistrate upon a preliminary examination, wherein petitioner was charged with the( murder of one John Dunn, and that his illegal detention consists! in this, to wit: That on the evidence introduced on the preliminary examination the proof of his guilt is not evident, nor the presumption thereof great.

A transcript of the testimony taken upon the preliminary examinations is annexed to and made a part of his petition. The defendant did not take the witness stand* in his own behalf. The settled rule of this court is that, upon an applica- *382 tionfor Hail by writ of babeas corpus, after commitment for a capital offense, tbe burden is upon tbe petitioner to show facts sufficient to. entitle bim to bail, and if, upon a consideration of all tbe evidence introduced on tbe application for bail, the court is of tbe opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. Under this rule, unless the proof on tbe part of the prosecution tends to show that tbe crime committed only amounts to manslaughter, bail will be refused, where tbe defendant does not take tbe witness stand on tbe preliminary examination, and does not elect to testify in support of bis application for bail.

Upon a consideration of all tbe evidence presented in support of the application in this ease, we are of opinion that tbe petitioner is not entitled as a matter of right to be admitted to bail. It is therefore considered and adjudged that tbe writ be denied, and bail refused.