Opinion
No. 12517.
Delivered March 6, 1929.
1. — Habeas Corpus — To Secure Bail — Granted.
Without giving instruction as to their cogency if passed upon by a jury, this court does not feel warranted in concluding that on the evidence at hand, a jury would probably inflict the death penalty.
2. — Same — Continued.
Bail is a matter of right, unless the evidence is clear and strong, leaving a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent and that he would probably be punished capitally, if the law is administered. See Ex Parte Alford, 97 Tex.Crim. Rep., and other cases cited.
Appeal from the District Court of Wilbarger County. Tried below before the Hon. Robert Cole, Judge.
Appeal from an order refusing appellant bail under a charge of murder, by complaint. Bail granted in the sum of $10,000.00.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
This is an appeal from an order of the district judge denying bail.
Appellant is charged by complaint with the murder of Herman Walden. The body of deceased was found in a pasture near an oil camp. There were shot gun wounds in the breast. Near the body were some empty 12-gauge shot gun shells. The body was rigid and stiff and looked like it had been in the position in which it was found for some time. The state introduced in evidence various circumstances tending to identify appellant as having committed the homicide. Touching the facts immediately attending the homicide, the record is silent. Without giving intimation as to their cogency if passed upon by a jury, this court does not feel warranted in concluding that on the evidence at hand a jury would probably inflict the death penalty. We do not deem it necessary to set out the facts in detail.
Bail is a matter of right unless the evidence is clear and strong leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered. Ex parte Alford, 97 Tex.Crim. Rep., 261 S.W. 1041; Ex parte Powell, 298 S.W. 575. The burden is on the state to show that the accused is not entitled to bail. Otherwise he is entitled to bail as a matter of right. Article 1, section 11, Constitution of Texas; Ex parte Powell, supra.
The judgment denying bail is reversed and bail granted in the sum of $10,000.
Reversed and bail granted.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.