
    Ex parte POWELL.
    (No. 11332.)
    Court of Criminal Appeals of Texas.
    Oct. 12, 1927.
    1. Bail <&wkey;43 — Bail Is matter of right, unless evidence clearly indicates commission of offense by accused and probability of capital punishment.
    Bail is a matter of right, unless evidence is so clear and strong as to lead a well-guarded and dispassionate judgment to conclusion that offense has been committed, that accused is guilty agent, and that he probably will be punished capitally if law is administered.
    2. Bail &wkey;>49 — Bail was erroneously denied to one charged with murder, in absence of proof of motive or explanation for killing.
    In absence of proof of motive or explanation for killing, court erred in denying bail to one charged with murder; fact that fair jury would likely inflict death penalty not being evident.
    3. Bail <&wkey;49 — Burden is on state to show that accused is not entitled to bail (Const, art. I, § 11).
    Burden is on state to show that accused is not entitled to bail; otherwise he is entitled thereto as matter of right under Const, art. 1, § 11.
    Commissioners’ Decision.
    Appeal from District Court. Atascosa County; W. O. Murray, Jr., Judge.
    James Powell was charged with murder, and from an order denying bail, he appeals.
    Reversed and bail granted.
    Douglas, Carter & Black, of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The appeal is from an order denying bail. Appellant is charged by complaint with the offense of murder.

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. Cr. R. 410, 261 S. W. 1041. The testimony before us in this case does not make evident the fact that upon a trial a fair jury, considering such testimony, would likely inflict the death penalty. The state offered no proof of a motive for the killing, and as far as the record reflects the facts, the killing is apparently without an explanation. See Ex parte Feray, 102 Tex. Cr. R. 645, 279 S. W. 470. The burden is on the state to show that accused is not entitled to bail. Otherwise he is entitled to bail as a matter of right. Article 1, § 11, Constitution of Texas. The case may not have been fully developed by the state, but there being a failure to discharge the burden resting upon it, we must hold that the court committed error in denying bail.

The judgment denying bail is reversed, and bail granted in the sum of $5,000.

PER CURIAM. 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.  