
    Ex parte CUARON.
    (No. 9584.)
    (Court of Criminal Appeals of Texas.
    June 24, 1925.)
    1. Bail &wkey;>49 — Not denied unless state proves capital offense committed by accused, which is not proved in absence of express malice.
    In habeas corpus to secure defendant’s release on bail, state, to justify denial of bail, has burden of proving proof evident of a capital offense committed by defendant, which is not done in absence of proof of express malice.
    2. Bail <&wkey;s49 — Evidence of capital offense justifying denial of bail should be clear.
    Evidence of capital offense justifying denial of bail should be. clear and strong, leading a well guarded and dispassionate judgment to conclusion that offense has been committed by accused, and that he would probably be punished capitally if law is ministered.
    3.Courts <&wkey;>l06 — Court of Criminal Appeals wiil not discuss facts in habeas corpus cases.
    Court of Criminal Appeals as a rule will not discuss facts in habeas corpus cases.
    Commissioners’ Decision.
    Appeal from District Court, El Paso County ; W. D. Howe, Judge.
    
    Habeas corpus by Wm. Cuaron, charged with murder, to secure his release on bail. From judgment denying bail, relator appeals.
    Reversed, and bail granted in the sum of $10,000.
    W. H. Fryer and Moore & Smith, all of El Paso, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., for the State.
   BAKER, J.

The relator is charged by indictment in the district court of El Paso county with murdering one Dorothy Hill, and this is an appeal from said district court denying the relator bail on habeas corpus proceedings.

We understand the rule to be in habe-as corpus cases of this kind that, in order to authorize the denial of bail, the burden of proof is upon the state to produce “proof evident of a capital offense committed by the accused,” and this is not done in the absence of proof of express malice; that the evidence required should be clear and strong, leading a well guarded and dispassionate judgment to the conclusion that the offense had been committed by the accused, and that he would probably be punished capitally if the law is ministered, before bail should be denied him. In support of these propositions, we cite Cordono v. State, 56 Tex. Cr. R. 447, 120 S. W. 471; Ex parte Francis, 91 Tex. Cr. R. 398, 239 S. W. 957; Ex parte Jeff Hicks, 95 Tex. Cr. R. 450, 254 S. W. 1109; Ex parte Sparks, 81 Tex. Cr. R. 618, 197 S. W. 873; Ex parte Line, 90 Tex. Cr. R. 344, 235 S. W. 587; Ex parte Harris, 90 Tex. Cr. R. 246, 234 S. W. 398.

After a careful examination of the statement of facts in this case, we are forced to the conclusion that the evidence relied on in this case by the state does not meet the requirement of the above authorities which would authorize the court to deny bail in this case. The defendant introduced no testimony in the trial court, and the case is before us upon 'the testimony produced by the state alone. In the Oordono Case, supra, the appellant was given a death penalty, and on motion for rehearing the ease was reversed because the trial court failed to properly charge the jury on murder in the second degree. In that case the facts were very similar to the instant ease, and we have been unable to find any authority overruling or criticising said decision by this court. This court as a rule will not discuss the facts in habeas corpus cases.

For the reason herein stated and the authorities cited in support thereof, we are of the opinion that the trial court erred in denying the relator bail, and the judgment of the trial court is therefore reversed, and bail is granted relator in the sum of $10,000.

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. 
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