
    Ex parte CATES.
    (No. 6334.)
    (Court of Criminal Appeals of Texas.
    May 18, 1921.
    Rehearing Granted June 9, 1921.)
    1. Habeas corpus <§=»II3(9)' — Court without jurisdiction where no notice of appeal in transcript.
    Where the transcript in a habeas corpus proceeding showed the application for the writ, the answer of the officers and the order denying bail, but no notice of appeal, the court had no jurisdiction.
    On Motion for Rehearing.
    2. Habeas corpus <⅜=»107 — Where jury fixed punishment of applicant at less than capital, court erred in denying bail.
    Where the verdict of the jury upon the former trial fixed the applicant’s punishment at less than capital and testimony tending to show a conspiracy between the applicant and deceased’s wife to kill deceased was erroneously admitted, the court cannot say that the jury upon another trial would be likely to inflict the death penalty, and the applicant should be admitted to bail. ’
    Appeal from District Court, Crosby County; W. R. Spencer, Judge.
    Application for writ of habeas corpus by Sam Cates against the State. From an order remanding relator to the Sheriff without bail, relator appeals.
    Reversed, and relator admitted to bail.
    See, also, 227 S. W. 953.
    Lloyd A. Wicks, of Ralls, and W. H. Bled-soe, of Lubbock, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

The relator filed an application for a writ of habeas corpus before 1-Ion. Judge W. R. Spencer, judge of the Seventy-Second judicial district of Texas on March 10, 1921. On April 28, upon a hearing under such application, relator was remanded to the custody of the sheriff without bond.

The record is before us in such a condition that we are unable to consider it. The transcript shows only the application for the writ, the answer of the officers, and the order denying hail. It nowhere shows notice of appeal, and there is nothing in the record advising this court in any way that the order of the district judge remanding applicant without bail was unsatisfactory to him. This is not an original writ of habeas corpus presented to this court, and if it can be entertained it must be upon appeal from a hearing before the district judge, and in the absence of notice of appeal this court has no jurisdiction.

The appeal is therefore ordered dismissed. Ex parte C. P. Shearman et al., 230 S. W. 691, decided May 11, 1921.

On Motion for Rehearing.

This is an appeal from an order of the district judge remanding relator to the sheriff without bail. At a previous day of the term the appeal was dismissed because the record disclosed no notice of appeal from the order of the district judge.

Upon motion for rehearing we find attached a certificate of the district judge to the effect that notice of appeal was given. Therefore the motion for rehearing is granted, and the matter will now be determined upon its merits.

The facts in the case will not be set out in detail. The main case has been before this court heretofore, and the opinion will be found reported in 227 S. W. 953. After the mandate in that case was issued, the present habeas corpus proceedings were begun. Sufficient facts are detailed in the opinion referred to for the purposes of this application for bail; and having in mind the verdict of the jury upon the former trial of the case, which fixed the punishment at less than capital, and the fact that certain testimony admitted upon that trial was held to have been erroneously admitted, and all of the other facts in the case being taken into consideration, we have reached the conclusion that it is a case where we .would not be authorized in saying that the jury, upon another trial in the discharge of their duty, would be likely to inflict a death penalty.

Therefore the judgment of the trial court will be reversed, and the relator admitted to bail in the sum of $15,000. 
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