' The appellant Cecil H. Connor, was indicted by a grand jury of Dade County, Florida, for the crime of murder in the first degree. In a habeas corpus proceeding he applied to the Circuit Court of Dade County for an order releasing him from custody on bail', but he was remanded to custody without bail ánd from this order an appeal has been perfected here.
Counsel for appellant contended that the evidence relied upon by the State fails to establish all the elements that are essential in law to constitute the crime of murder' in the first degree. Likewise, the evidence relied upon by the State, when considered- as a whole, shows only a probable guilt of murder in the first degree and therefore it cannot be said that the proof is evident or the presumption great that the petitioner is guilty of a capital offense.
• Oral argument has been heard at the bar of this court and a careful study or analysis has been made of all the evidence and it is our conclusion that the petitioner is entitled to an order discharging him from custody upon giving bond in such an amount as shall be reasonable and just as shall be determined in thé court below. See Section 9 of the Declaration of Rights of the Constitution of Florida; Ex parte Nathan *845(Fla.) 50 So. 38; Ex parte Tully, 70 Fla. 1, 66 So. 296; Russell v. State, 71 Fla. 236, 71 So. 27.
Reversed.
THOMAS, C. J., TERRELL and HOBSON, JJ., concur.