
    Ex parte WALKER et al.
    (No. 7993.)
    (Court of Criminal Appeals of Texas.
    June 29, 1923.)
    Bail <3=»45 — Where neither death nor life imprisonment assessed against defendants convicted of murder, and conviction was reversed, held they were entitled to bail.
    Where defendants were twice tried and conviction twice reversed, and the jury in the second trial did not assess the death penalty or life imprisonment,, held, that defendants were entitled to bail.
    Appeal from District' Court, Comanche County; J. R. McClellan, Judge.
    In the matter of application for bail by Ed Walker and others. From order denying bail, they appeal.
    Reversed, with instructions.
    Callaway & Callaway, of Comanche, for appellants.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

This is an appeal from the order of the district judge denying bail to the relators Gibbs Howard, W. W. Will-man, and Ed Walker, who are under indictment for the murder of Jack McCurdy. Their cases have been twice tried. First there were separate trials, which were reversed for the reasons stated in the opinions in Howard v. State, 92 Tex. Cr. R. 221, 242 S. W. 739; Walker v. State, 92 Tex. Cr. R. 296, 242 S. W. 749. Willman v. State, 92 Tex. Cr. R. 77, 242 S. W. 746. On the appeal from the last conviction, the judgments were again reversed. See Walker et al. v. State, No. 7621 (Tex. Cr. App.) 252 S. W. 543, not yet reported. On the joint trial, Walker’s punishment was fixed at confinement in the penitentiary for a period of not less than 5 nor more than 99 years; that of Willman and Howard each at not less than 5 nor more than 60 years.

There is some difference, particularly with reference to Howard, between the evidence upon the first and second trials. The evidence, however, upon &⅜ second trial in which the relators were jointly tried, is identical with the evidence supporting this application, the parties having by agreement used the transcript of the evidence upon that trial.

Neither the death penalty nor life imprisonment has been assessed against either of the relators. The jury assessed against them long terms in the prison, but under the law they were subject to the terms of the Indeterminate Sentence Law (Laws 1913, c. 132, as amended by Laws 1913 [Ex. Sess.] c. 5), which requires that the judgment fix an indeterminate term, as above stated. The jury in passing on the same facts that are in the present record having refused to assess capital punishment, this court would not be warranted in regarding it as one in which there was “proof evident” that the relators were guilty of a capital offense. For these reasons we are of the opinion that the relat-ors are entitled to bail.

Therefore the judgment denying it is reversed, with instructions that the relators each be allowed bail in the sum of $10,000 and that this order be certified to the clerk of the district court of Hamilton county, ■where the case was last tried, and also to the clerk of the district court of Comanche county from which this appeal denying bail comes. 
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