
    Ex parte MULLINS.
    (No. 9058.)
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1924.)
    Bail <&wkey;43, 51 — Order denying bail to one charged with forcible rape held error.
    Order denying bail to one charged with forcible rape held error, where facts did not reveal case calling for the assessment of death penalty, and, in such ease bail will be allowed in sum of $7,500,
    Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.
    Bass Mullins was charged with rape by force, and appeals from order denying bail.
    Reversed and bail allowed.
    Bledsoe & Pharr, of Lubbock, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Relator was charged by indictment of rape by force and appeals from an order of the district judge refusing to»' grant him bail. The prosecutrix, the relator, and a number of other witnesses testified.

A recital of the facts is not deemed desirable. A careful reading of them leads us to the conclusion that proof of a capital offense is not evident. The prosecutrix affirms and the relator denies the commission of the offense. The testimony of the prose-cutrix is in conflict with that of other witnesses upon- collateral matters. The report of the alleged offense or outcry was delayed. There is in evidence the admission of the prosecutrix that after the alleged offense she rode in a car with the appellant and consented to be his paramour. This she explains upon the ground of fear of him.

Considering the record in its entirety, we are impressed with the view that the facts do not reveal a case in which the jury, in the discharge of their duty, would properly assess the death penalty. The state’s attorney concedes that bail should be granted.

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