
    Ex parte POLK.
    (No. 9201.)
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1925.)
    1. Bail <⅜=343 — Express malice in killing considered! in determining right to bail.
    In determining if one charged with murder is entitled to bail, it is necessary to inquire if express malice be shown.
    2. Homicide <@=233 — Killing so deliberate as to constitute express malice first degree murder without proof of motive.
    Sudden killing, so deliberate as to be within definition of express malice, may be first degree murder without proof of motive.
    3. Homicide <@=13— Specific malevolence against deceasedl embraced in reckless disregard of life.
    Specific malevolence against deceased may be embraced in such utter and reckless disregard of life as shows slayer to be enemy of all mankind.
    4. Criminal law <@=l 148 — Trial court’s decision denying bait entitled to great weight.
    Trial court’s decision denying bail, while not conclusive on appellate court, is entitled to great weight.
    5. Criminal law <@= 1148 — Reversal of decision denying bail not altvays required by evid'ence of mitigating circumstances.
    Evidence of mitigating circumstances, self-defense, or accidental killing, does not always require reversal of trial judge’s decision deny--ing bail.
    6. Bail <@=49 — Source of evidence considered in determining right to bail.
    Source of evidence may be considered in determining whether denial of bail was erroneous, as where witness on whom relator relies was his companion on night of homicide and charged with implication in killing.
    7. Bail <@=43 — Denial of bail to one charged with murder held warranted.
    Evidence of design to kill some one held to show such utter and reckless disregard of life in shooting deceased as to warrant denial of bail without proof of motive.
    Appeal from District Court, Fisher County; Bruce W. Bryant, Judge.
    Jones Polk was remanded without bail on charge of murder, and he appeals.
    Affirmed.
    T. Yard Woodruff, of Sweetwater, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, • for the State.
   HAWKINS, J.

From an order of the district judge of Fisher county remanding relator without bail, upon a charge of murder growing out of the killing of Jim Bob Lar-gent, relator appeals.

We gather from the testimony that Laura Holley is a negro woman, who, at the time of the homicide, was running a rooming and eating house in the town of McCauley in Fisher county. Relator is a white man. Laura Holley was the principal witness for the state. Her testimony condensed is: That appellant came to her place of business on the night of the homicide between 8 and 9 o’clock and told a number of negroes who were in the room where he entered that he was “hi-jacking” and for them to hold up their hands, relator having a pistol at the time; that Ed Anderson was with him; that relator searched the negroes, then came to the room where witness was, secured a lamp, and with a number of other men went into a room where they engaged in gambling until late in the night; that after they came out of the room relator walked to the front part of the building and fired a shot into the ceiling ; then walked back in the kitchen and sat down in a chair. Several parties appear to have been in the kitchen at this timp, among them deceased, a boy about 17 years of age. Laura Holley further says that after relator returned to the kitchen he said: “Well, I am going to kill me some s-of a b-;” got up out of his chair and shot deceased. There is no evidence in the record which shows any quarrel between relator and deceased, or which intimates that deceased was doing anything causing relator to shoot him.

The only witness used by relator as to the incident of the killing was T. Cooper, who, with Ed Anderson, was also charged with the killing of deceased. Cooper testified that after they came out of the room where the gambling was engaged in Ed Anderson fired the shot into the ceiling and not relat- or ; that at the time the pistol was discharged which killed deceased the witness Laura Holley was not in the room where the shooting occurred, but was in another room with Ed Anderson. He accounts for the shooting by the statement that relator was leaning back in a chair and his pistol slipped out of his pocket on to the floor; that both witness Cooper and relator reached for it; that as relator picked it up it was discharged accidentally, the shot striking deceased. He explains relator’s action earlier in the night at the time he searched the negroes, by stating that relator claimed to be an officer looking for a negro man who was supposed to have stolen a pistol. This witness Cooper also testified that, after the shooting, relator said to deceased “Do you think I shot you a purpose?” to which deceased replied, “God knows, Jones, I know you didn’t.”

In determining if an accused charged with murder be entitled to hail, we have found it necessary to inquire if express malice he shown. Ex parte Francis, 91 Tex. Cr. R. 398, 239 S. W. 957; Ex parte Townsley, 87 Tex. Cr. R. 252, 220 S. W. 1092. See, also, many authorities cited in those opinions. It appears to he relator’s contention that this homicide occurred suddenly, without premeditation and without motive, and that therefore evidence of express malice is absent. We cannot agree with relator in this respect. In section 2096, Branch’s Ann. P. C. is found this statement;

“If a sudden killing is so deliberate as to satisfy and come within the definition of express malice, it may be murder in the first degree though there be no proof of motive.”

Among many authorities cited supporting- the text will be found Snowberger’s Case, 58 Tex. Cr. R. 530, 126 S. W. 884, and Wynne’s Case, 59 Tex. Cr. R. 117, 127 S. W. 197. Specific malevolence against the party killed may be embraced in such an utter and reckless disregard of life as shows his slayer to be an enemy of all mankind; as when a man resolves to kill the next man he meets, and does kill him; or shoots into a crowd wantonly, not knowing whom he may kill. In such case it may well be said that he has malevolence towards the particular person killed because he was within the scope of his malignity. McCoy v. State, 25 Tex. 33, 78 Am. Dec. 520. This principle appears to be applicable in the present Case. The state’s evidence shows that relator had formed the design to kill some one and executed the design upon deceased. A decision of the trial court denying bail, while not conclusive on this court, is entitled to and is accorded great weight. Ex parte Hanks, 97 Tex. Cr. R. 387, 261 S. W. 1027; Ex parte Lebo, 88 Tex. Cr. R. 435, 227 S. W. 187; Ex parte Sparks, 81 Tex. Cr. R. 618, 197 S. W. 873; Ex parte Matlock, 18 Tex. App. 227; Ex parte Beacom, 12 Tex. App. 318; Ex parte Moore, 5 Tex. App. 103.

Because there may be evidence in the record of mitigating circumstances, or raising the issue of self-defense, or of an accidental killing does not in every case require overturning of the decision of a trial judge denying bail. Ex parte Ross, 94 Tex. Cr. R. 313, 251 S. W. 235; Ex parte Good, 94 Tex. Cr. R. 326, 251 S. W. 233; Ex parte Jones, 31 Tex. Cr. R. 422, 20 S. W. 983; Ex parte Smith,. 23 Tex. App. 100, 5 S. W. 99; Ex parte Hanks, sufcra. 'The source of the evidence may be considered in determining whether the denial of bail was erroneous. The witness upon whom relator relies was his companion on the night of the homicide, and seems to be charged with being implicated in the killing.

We conclude that under all the facts before us we would not be justified in disturbing the order of the trial judge.

The judgment is affirmed. 
      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     