
    Ex parte GREEN.
    (No. 10017.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1926.)
    1. Bail &wkey;43 — Bail should be granted, except in cases where conviction for capital offense would likely result.
    Under constitutional provision that every one accused of crime shall be entitled to bail, except where proof is evident, bail should' be granted in each ease, except where dispassionate mind, upon careful review of evidence, is led to conclude that, on fair trial on facts, conviction for capital offense would likely result.
    2. Bail <&wkey;i43 — To justify refusal of bail burden is on state to make satisfactory showing that homicide is of character that would call for capital punishment.
    Under constitutional provision that bail shgll be granted every person accused of crime, except where proof is evident, burden is on state to make satisfactory showing, in opposing granting of bail, that homicide is of such aggravated character that it would call for capital punishment.
    3. Bail &wkey;>49 — Evidence held insufficient to show that accused would be convicted of capital offense, so as to justify denial of bail.
    . On habeas corpus procfeedings to secure bail by one accused of homicide, evidence held insufficient to make it evident that on trial accused would be convicted of capital offense, so as to justify denial of bail.
    Appeal from District Court, Washington County; J. B. Price, Judge.
    Habeas corpus proceeding by Gaines Green to be admitted to bail. From a judgment denying bail, he appeals.
    Reversed, and baii granted.
    John M. Mathis, of Houston, and B. F. Teague, of Brenham, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BATTIMORE, J.

From a judgment denying bail on habeas corpus hearing before the district court of Washington county,' appeal is taken.

The Constitution of this state provides that bail shall be granted every person accused of crime, except in cases where the proof is evident. This has been uniformly construed to mean that bail should be granted, except in those cases where the dispassionate mind, upon a careful review of the evidence, is led to conclude that, upon a fair trial on the facts now presented, a conviction for a capital offense would likel-y result. The rule is too well settled to need citation bf authorities.

The state introduced two witnesses, a, negro and a Mexican. The negro testified that he heard loud talking near his house on the night of the alleged homicide, and went out. He swore that presently appellant drove up in a car and stopped, and that a little later deceased and a woman named Hughes came along, and that presently one McAdoo and Hogan drove up. A quarrel began between deceased and the woman. The other parties took part in the quarrel seemingly against deceased. The witness testified that he saw appellant strike deceased a blow with a pistol, and that at the end of the fight the party separated, and before they separated they put deceased in one of the cars and carried ,him away. This is practically the substance of the pertinent details given by the witness.

The Mexican witness for the state swore that, on the night before the body of deceased was found the next morning, he saw appellant and Hogan and ahother man and a woman get off of a car and pull something off of the ear, which he thought was a sick man or a drunk man, and that they put this person on the side of the road near the woman’s home.

No witness for the state was introduced to testify what caused death, or to give the appearance of the body whep found. The burden seems to be upon the state to make satisfactory showing tliat the homicide is of that aggravated character which would call for capital punishment. Without discussing the testimony introduced by the appellant, we are not led to believe that in this cáse there is proof making evident the fact that, upon a trial, appellant would be capitally convicted. There is proof in the record that one of the parties at least was drunk on the night of the homicide. An unexplained killing by striking one with a pistol used as a bludgeon, wbicb is not per se a deadly weapon, even if it bad been shown that this caused death, would hardly seem to make the case one demanding capital punishment. The observations made by the state witnesses were in the nighttime.

Being of opinion that bail should not be denied in the case, the'judgment refusing same is reversed, and bail granted- in the sum of’$4,000. 
      
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