¶1In our judgment the proof is not evident that the applicant is guilty of a capital offense, and we hold that he is entitled to bail. We fix the amount of his bail at the sum of $5000. Upon his giving bail in said sum in accordance with the law he will be released from custody.
¶2We are of the opinion that the statements made by applicant to C. V. Fraley two or three minutes after the homicide, and relating to the homi*132cide, constitute res gestee, and are admissible in his behalf. His statements to Michaelson, however, made several months before the homicide,, are not, we think, admissible in his behalf.
¶3Ordered accordingly.
¶4Judges all present and concurring.