
    Ex parte COLLINS.
    (No. 8682.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.)
    1. Bail <§=>49 — Evidence of accused’s guilt held not to warrant denying bail.
    In prosecution for rape, evidence of accused’s guilt Md not so strong as to warrant denying bail.
    2. Bail <&wkey;42 — When accused entitled to bail as matter of right stated.
    Under Const, art. 1, § 11, unless evidence is clear and strong that offense has been committed, that accused is guilty agent, and that he would probably be punished capitally if law is administered, he is entitled to bail as matter of right.
    igmoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from, Criminal District Court, Harris County; C. W. Robinson, Judge.
    Duther Collins was remanded to custody without bail under habeas corpus proceedings, and he appeals.
    Reversed, and bail fixed.
    Mathis, Heidingsfelder, Teague & Kahn, of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   DATTIMORE, J.

This is an appeal from a judgment of the criminal district court of Harris county denying bail. This case has been before this court on appeal from conviction, and the opinion with a statement of the facts then before the court may be found in 254 S. W. 805. Since reversal it is made to appear that the case has again been tried In the lower court, the result being a mistrial. Thereafter a writ of habeas corpus was sued out before the learned trial judge of the criminal district court of Harris county who, upon the hearing, remanded appellant to custody without bail.

Upon said hearing, in addition to the testimony heard before the jury upon the trial had in March, 1924, after reversal, appellant offered his verified application for this writ, wherein it is alleged that the jury who tried him the last time were divided in the ratio of seven for acquittal and five for conviction, and that neither of the five who stood for conviction was for the death penalty or for life imprisonment. While this statement is in no wise controverted by the state upon the hearing in the court below, we regard it as merely persuasive. It appears from the statement of facts introduced upon the last tried, which is herewith submitted for our consideration, that the state failed to introduce before the jury one of the two eyewitnesses to the transaction involved.

Appellant is charged with .rape, and the injured female testified, and other parts of the record corroborate her testnmony to this extent, that Ross Traina was with her at the time of the alleged rape, and was compelled by her assailant to remain quiet and present while the act of assault was committed. As stated, upon this last trial the state introduced the young woman, but failed to place upon the stand Ross Traina, notwithstanding it is shown that he was present at court and his testimony available. Fhom the records of this court, and its opinion heretofore delivered in this case and above referred to, we observe that, in support of a motion for new trial filed by appellant after his conviction at a former term, the affidavit of said Traina was offered, in- which appears the statement under oath that appellant is not the negro who in the presence of Traina assaulted the woman involved. In view of the facts above stated, and without further analysis or discussion of them, it is our opinion that the appellant is entitled to bail.

It is the mandate of our Constitution that every person charged with crime shall be bailable, except for capital offenses, when the pro'of is evident, and we are charged, in article 1, § 11, of the Constitution, with careful examination of the evidence, to the end that this provision be not construed so as to prevent bail in proper cases. Unless the evidence presented be clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered, bail becomes a matter of right. Ex parte Smith, 23 Tex. App. 100, 5 S. W. 99; Ex parte Evers, 29 Tex. App. 539, 16 S. W. 343; Ex parte Parker, 48 Tex. Cr. R. 486, 88 S. W. 230.

We find nothing in the record exhibiting the ability of appellant to make bail. In the absence of suqh proof, we can only fix such bail as seems commensurate with the gravity of the offense and the probability of conviction with punishment at a term of years.

The judgment will be reversed, and bail fixed in the sum of $7,500.  