[No. 3493.

Nov. 20, 1929.]

#### Ex parte WRIGHT.

[283 Pac. 53.]

O. O. Askren, of Roswell, and Caswell S. Neal, of Carlsbad, for petitioner.

M. A. Otero, Jr., Atty. Gen., and J. A. Miller, Asst. Atty. Gen., for respondent.

OPINION OF THE COURT

WATSON, J.

Carl G. Wright, by petition for writ of habeas corpus, claims that he is unlawfully restrained by reason of having been denied bail by the magistrate who committed him on a charge of murder in the first degree.

To shorten the procedure, petitioner has chosen tO' submit with his application the evidence taken before the examining magistrate, and he says that he desires to make' no further showing.

It is admitted that the evidence establishes guilt of a felonious homicide. The only question is whether the proof is evident or the presumption is great that petitioner acted deliberately and premeditatedly, which would be *423necessary to make his crime capital. Const, art. 2, § 13; Code 1915, §§ 1459, 1461.

The test frequently, if not usually, applied is whether a verdict upon such evidence could be sustained. Unquestionably the evidence before us meets that test. But we shall not here endeavor to reduce the matter to formula. Petitioner is able, it is true, to point to some circumstances in support of his contention that the homicide resulted from heat of passion. There are other circumstances which point to premeditation and deliberation, and upon conideration of which it may well be concluded that the proof is evident and the presumption great. Where a nice weighing of the circumstances might result in a conclusion either way, we do not think that there is a denial of a constitutional right in refusing bail.

In the present situation we have not deemed it wise to discuss the facts more fully.

The petition will be denied, and it is so ordered.

BICKLEY, C. J., and PARKER, J„ concur.

CATRON and SIMMS, JJ., did not participate.