
    Ex parte ROSS. Ex parte GOOD.
    (Nos. 7830-7833.)
    (Court of Criminal Appeals of Texas.
    May 2, 1923.
    Rehearing Denied May 23, 1923.)
    1. Bail <&wkey;43 — Presence of some conflict in testimony does not entitle accused to bail.
    Under Const, art. 1, § 11, entitling all prisoners to bail “unless for capital offenses when the proof is evident,” the mere fact that there is some conflict in the evidence or some testimony raising a defensive issue does not necessarily entitle accused to bail.
    On Motion for Rehearing.
    2. Habeas corpus <&wkey;l 13(13) — Lower court decision denying bail' on conflicting evidence rarely overturned.
    On appeal in habeas corpus, wherein bail was denied to one in custody under an indictment charging a capital offense, where the evidence below was conflicting, the appellate court will rarely overturn the judgment of the lower court and grant bail.
    3. Bail <&wkey;43 —Evidence held not to require reversal of trial ■ court’s judgment denying bail.
    Where evidence on behalf of the state showed that defendants shqt their victims when the latter had made no motion to carry into effect any threats they might have previously made against defendants, testimony by defendants that threats were communicated to them, and that the victims made motions as if to draw their pistols, does not require the reversal of the trial court’s judgment denying bail.
    <g=»For other oases see'same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Gaines County ; Clark M. Mullican, Judge.
    Tom Ross and Milt Good were separately indicted for the murder of W. D. Allison and of H. S. Roberson. Prom judgments denying their right to release on bail, they separately appeal.
    Affirmed.
    Bledsoe & Pharr and Percy Spencer, all of Lubbock, and G. E. Lockhart, of Tahoka, for appellants.
    Gordon B. McGuire, Dist. Atty., of Lamesa, Dayton Moses, of Port Worth, and R. G. Storey, Asst. Atty. Gen., for the State.
   Opinion in Case No. 7830.

HAWKINS, J.

Separate indictments were returned by the grand jury of Gaines county against Tom Ross and Milt Good, charging each of them with the murder of W. D. Allison and H. S. Roberson. Upon habeas corpus hearing before Hon. Clarke M. Mullican, judge of the Seventy-Second judicial district, they' were denied bail, and from such order the cases are before us on appeal.

We give only a very condensed statement of the facts. Allison and Roberson were employees of the Texas Cattle Raisers’ Association, and had been active in the investigation of alleged cattle thefts in Gaines and other counties. Largely as a result of their activity a number of indictments had been returned in various counties against Good charging him with theft of cattle. They were the principal witnesses against him. An indictment for cattle theft had also been returned against Ross in an adjoining .county, and a similar charge was under investigation in Gaines county. District court for said county was to convene on Monday, April 2, 1923, at Seminole. Allison and Roberson Were present in the town to go before the grand jury and report the result of their investigation. On Sunday night, April 1st, these two. men were sitting in the office of the hotel, there also being present the district attorney, the sheriff, a number of lawyers, and other parties, all engaged in general conversation. The office was a small room, not more than 14 feet square. Between 8 and 9 o’clock some noise at the door attracted- the attention of some of the witnesses and the barrel of a shotgun was seen entering the room, pointing in the direction of Roberson. A shot was immediately fired from the gun, and Ross and Good burst into the small office, both firing, Good with an automatic shotgun and Ross with a pistol. Allison was shot through the heart with the shotgun and fell forward out of his chair on the floor. Roberson was shot in the left ear with the shotgun, in the left side of his head and neck, and twice in the heart with a pistol. He did not fall out of his chair, but his head fell back against the wall. After Good fired three shots from the shotgun, and after Allison was on the floor, Good drew his pistol and fired one shot into Allison’s body. Both Allison and Roberson were armed at the time of the killing, but their pistols were found still in the holsters. There is positive evidence from the state’s witnesses that neither of the men moved or made a demonstration of any kind prior to or during the shooting, and many circumstances ánd physical facts are in evidence to the same effect. Ross and Good each testified that their presence at the hotel was to spend the night, and to consult one of the lawyers present, and that they had no knowledge of the presence of Allison and Roberson when they entered the hotel office, that each of them had been informed of threats by both of the men who were killed, and that when relators came into the office both Allison and Roberson made a demonstration as if to draw their pistols, and that relators fired in self-defense. A number of persons whom relators claimed to have heard and communicated the threats were present at the habeas corpus hearing, but none of them were called/as witnesses.

The rule construing section II, art. 1, of our Constitution providing that all prisoners shall be'bailable “unless for capital offenses when the proof is evident,” has been stated so often that repetition of it here is unnecessary. See Littleton v. State, 88 Tex. Cr. R. 614, 228 S. W. 946, and cases therein cited. We call attention only to the proposition that, merely because there may be some conflict in the evidence, or because of the presence of some testimony raising a defensive issue does not necessarily entitle an accused to bail. Ex parte Smith, 23 Tex. App. 100, 5 S. W. 99; Ex parte Jones, 31 Tex. Cr. R. 422, 20 S. W. 983. We quote from the Smith Case, supra:

“ ‘If, upon the whole testimony adduced, the court of judge entertains a reasonable doubt whether the relator committed the act, or whether in' so doing he was guilty of a capital crime, bail should be granted.’ This rule applies when the case is considered on appeal, the court keeping in mind the prima facie legal presumption that the action of the trial judge was correct. A majority of the court are not to be understood as holding that under the operation of this rule the evidence, though conflicting, may not at the same time be evident. To the mind of the tribunal passing upon the evidence the guilt of the applicant of a capital offense may be evidence; that is, clear, strong, not admitting of a reasonable doubt, and yet there may be evidence in conflict with such.in-culpatory evidence. It is not all conflicting, exculpatory evidence that will have the effect to raise a reasonable doubt of guilt and destroy or impair the force of ‘evident proof’ made by inculpatory evidence. It is for the judge os court who hears the testimony to consider the evidence as a whole, and if, by the entire evidence, a reasonable doubt of the applicant's guilt of a capital offense is not generated, the proof is evident and bail should be denied.”

Applying the foregoing principle to the instant record, we are unable to say the learned trial judge was in error in denying relat- or bail.

The judgment is affirmed.

Opinion in Case No. 7831.

HAWKINS, J.

From an order of the judge of the Seventy-Second judicial district denying relator bail, he appeals.

Under authority of Ex parte Ross, No. 7830, this day decided, the judgment is affirmed.

Opinion in Cases Nos. 7832, 7833.

HAWKINS, J. This is a companion ease to No. 7830, Ex parte Tom Ross, and, upon authority of the opinion in that case, the judgment denying relator bail is affirmed.

On Motion for Rehearing in Oases Nos. 7830-7833.

LATTIMORE, J.

The appellant herein was denied bail on habeas corpus hearing before’ Hon. Clark M. Mullican, district judge of Gaines county, Tex., and appealed to this court, which, at a recent day of this term, affirmed the order and judgment of the lower court. Appellant was not satisfied and asks for a rehearing, and the matter has been again considered by us.

The rule seems to be that on appeal in habeas corpus hearing, wherein bail was denied, if the complaint be that the evidence below was conflicting, this court will rarely overturn the judgment of the lower court and grant bail. Drury v. State, 25 Tex. 45; Ex parte Rothschild, 2 Tex. App. 560; Ex parte Beacom, 12 Tex. App. 318; Ex parte Sparks, 81 Tex. Cr. R. 618, 197 S. W. 873; Ex parte Lebo, 88 Tex. Cr. R. 435, 227 S. W. 187. An inspection of the record reveals the fact that upon the hearing in the court below, the state introduced a number of eyewitnesses to the killing, who denied that either one of the men who were killed, by any act or movement of theirs, evidenced an intent to execute threats theretofore made, as testified to by each of the appellants. Both Ross and Good took the witness stand and swore that threats against them, on the part of each of the parties killed, had been 1 communicated to them and that when they walked into the room where the killing occurred the deceased made movements indicating apparently a present purpose to execute such threats. The accused testified that there were witnesses present by whom they could prove the fact that deceased had made threats. No such witnesses were called to give evidence. No persons other than the accused testified to any movements on the part of either of the persons killed which might form a predicate for a belief on the part of appellants that an attempt was being made or about to be made to execute threats. This then appears to be a case in which the state witnesses make out a case apparently capital, and the only conflict which appears is based on the testimony of the accused. In such case we do not believe ourselves justified in disturbing the judgment of the trial court.

The motion for rehearing will be overruled. 
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