
    Ex parte HARRIS.
    (No. 6672.)
    (Court of Criminal Appeals of Texas.
    Nov. 9, 1921.)
    • Bail @==>49 — Proof evident of capital offense warranting refusal of bail not made.
    The state’s burden of producing proof evident of a capital offense, which necessitates proof of express malice, to- justify refusal of bail, is not discharged by proof of a sudden killing by shooting on an unexpected meeting, with no explanation of motive; and insufficiency of , such evidence is accentuated by the relator’s testimony presenting the theory of self-defense on communicated threats and demonstration indicating an immediate intent to execute them, though the evidence of demonstration is combated.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Habeas corpus proceeding by G. p. Harris to secure! release on bail. Bail denied, and relator appeals.
    Reversed, and bail fixed at $7,500.
    Meek & Kahn, of Houston, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Relator is charged with the murder of Paul Schultz. He was denied bail.

Relator shot the deceased, using a shotgun. The parties were on the public road. Relator and a companion had come to the place of the homicide in an automobile truck. Before the fatal shot was fired, they got out of the truck and were making some adjustment on the engine. As the deceased approached them, relator seized the gun and shot him. The state’s testimony does not further explain the homicide.

The defensive theory was that, as the deceased approached, appellant spoke to him, and the deceased responded with a threat to kill the relator and made a demonstration indicating an intent to draw a weapon. Several witnesses testified to previous expressions of ill feeling made by the deceased against the relator, including specific threats to kill him, and some of them testified that these were communicated to the relator prior to the homicide.

The burden rested upon the state to produce “proof evident” of a capital offense. To discharge this burden, proof of express malice was required. McCoy v. State, 25 Tex. 34, 78 Am. Dec. 520; Rose’s Notes on Texas Reports, vol. 1, p. 1042. This burden is not discharged by proof of a sudden killing by shooting upon an unexpected meeting, with no explanation of the motive. Farrer v. State, 42 Tex. 271; Burnham v. State, 43 Tex. 324; Jones v. State, 29 Tex. App. 340, 15 S. W. 403. The insufficiency of the evidence to discharge the burden upon the state is accentuated by the issues arising from the testimony introduced by the appellant. From it the theory of self-defense upon communicated threats and demonstration indicating an immediate intent to execute them Is definitely and affirmatively presented. The evidence of a demonstration by deceased is combated by circumstances immediately surrounding the homicide and by the testimony of' an eyewitness that he saw nothing done by the deceased.

Clearly a question of factj however, was raised. That there was such issue would not alone be conclusive against the state. In the instant case, considered in connection with the entire evidence, the court is not warranted in assuming, in advance, that the defensive theories will be rejected upon the trial and that the jury, in the due administration of justice, will probably convict the appellant of a capital crime and affix his punishment accordingly. Ex parte Young, 87 Tex. Cr. R. 415, 222 S. W. 242; Ex parte Townsley, 87 Tex. Cr. R., 252, 220 S. W. 1092; Ex parte Burton, 75 Tex. Cr. R. 105, 170 S. W. 308; Ex parte Stevens, 85 Tex. Cr. R. 419, 213 S. W. 656; Ex parte Dooley, 74 Tex. Cr. R. 650, 170 S. W. 303.

The judgment denying bail is reversed, and bail granted in the sum of $7,500. 
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