
    Ex parte STEPHENSON.
    (Court of Criminal Appeals of Texas.
    Oct 14, 1913.)
    1. Bail (§ 43) — Bailable (Defenses — Death as Alternative Punishment.
    Const, art. 1, § 11, and Code Cr. Proe. 1911, art. 6, provide that all -prisoners shall be bailable by sufficient sureties unless for capital offenses when the proof is evident. When such constitutional provision was adopted, murder in the first degree was punishable by death only. Act April 3, 1913 (Acts 33d Leg. c. 116), abolishes degrees of murder, and prescribes as the punishment for murder death or imprisonment for life, or for any term of years not less than five. Hold, that the mere fact that death is one of the penalties authorized does not render murder nonbailable; but, if the court, exercising a well-guarded and dispassionate judgment, reaches the conclusion that the death penalty, if the law is properly enforced, will be imposed by the jury, bail should be denied, while if it reaches the conclusion that the jury probably will not and should not inflict the death penalty, bail should be granted.
    [Ed. Note. — Eor other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.]
    2. Criminal Law (§ 1148) — Appeal—Discretion oe Court — Admission to Bail.
    On an application for bail by a person charged with murder, the trial judge has a reasonable discretion in determining whether the death penalty probably will or should be imposed, and on appeal the presumption will be indulged that his judgment is correct.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3050-3052; Dec. Dig. § 1148.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Habeas corpus proceeding by W. C. Stephenson to obtain his release on bail. From a judgment denying bail, petitioner appeals.
    Reversed, and bail granted.
    T. B. Ridgell, of Rockwall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other, cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was held under an accusation for murder alleged to have been committed August 19, 1913, after the act of the Legislature approved April 3, 1913 (page 238), abolishing the degrees of murder, and changing the penalty therefor, was in effect. On a habeas corpus hearing the district judge denied bail, from which appellant prosecuted this appeal.

The statement of facts, is quite lengthy. It is the rule of this court not to discuss the facts in habeas corpus bail cases. Before said act of 1913 the offense of murder was in two degrees, first and second. The punishment for the first degree was by death or confinement in the penitentiary for life; for the second degree, It was confinement in the penitentiary for any term not less than five years. By said act of 1913 the degrees of murder were abolished, and the punishment, as prescribed by that act, is death or confinement in the penitentiary for life or for any term of years not less than five.

In 1876, by and when our present Constitution became effective, murder of the first degree was punishable by death only. McInturf v. State, 20 Tex. App. 335. Since then the penalty was so changed as to make it punishable by death or imprisonment for life as stated above. Section 11, art. 1, of our Constitution is: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found, upon examination of the evidence in such manner as may be prescribed by law.” This is also enacted as a part of C. C. P., art. 6. The fact that by and at the time this constitutional provision was adopted, murder in the first degree was punishable only by death should be taken into consideration. Mr. Harris, in his Texas Constitution, under this article (page 107), we think, lays down this correct proposition from the authorities: “(3) ‘Proof is evident,’ if the evidence is 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, and in such case bail is not a matter of right. Ex parte Smith, 23 Tex. App. 100, 5 S. W. 99; Ex parte Beacom, 12 Tex. App. 318; Ex parte Coldiron, 15 Tex. App. 464; Ex parte Evers, 29 Tex. App. 539, 16 S. W. 343.”

The rule is “all prisoners shall be bailable.” The exception is “when the proof is evident” that not only the accused is guilty, but that the jury will, if they properly enforce the law, probably assess capital punishment, this conclusion to be reached by the well-guarded and dispassionate judgment of the court or judge passing upon the question. The denial of bail in any case and the confinement of the accused in jail to await trial is not, and is not intended as, any punishment of the accused for his crime; but the reason for refusing bail and so confining him is to be certain that he shall be present at the court and stand his trial. If upon a consideration of all the evidence, it is reasonably probable to tbe well-guarded and' dispassionate judgment of tbe judge or court that a jury in tbe proper enforcement of tbe law will inflict tbe death penalty, then tbe theory of tbe law is that life is so dear to tbe accused no amount of bail will secure his attendance at tbe trial, hence bail should be denied him. Tbe judicial history of our state and tbe long experience of the judges and courts demonstrate that in tbe trial of cases, where tbe death penalty can be inflicted, tbe juries do not, and probably should not, inflict tbe death penalty’in tbe great majority of such cases. Our statute (article 329, C. C. P. subds. 2, 3), in prescribing rules when bail is granted, is: “2. Tbe power to require bail is not to be used in such manner as to make it an instrument of oppression. 3. Tbe nature of tbe offense and tbe circumstances under which it was committed are to be considered.”

In addition to treason, our statutes authorize several offenses to be punished capitally, such as murder in tbe first degree heretofore, now in any case; murder in certain eases of arson, perjury when committed in a capital ease under certain circumstances, rape, and robbery with firearms. Tbe punishment for rape is death or confinement for life, or for any term of years not less than five. For robbery with firearms it is death or confinement in the penitentiary for any term not less than five years. It is unnecessary to state tbe penalties for tbe other capital offenses, as these are stated merely for illustration. It was never tbe policy of tbe law, nor tbe legislative intent, that bail should, as a 'matter of law, be denied in all eases for rape, or robbery with firearms, or any other of tbe capital offenses, simply because the death penalty was authorized to be inflicted. ' As stated by the statute above quoted, the nature of the offense and the circumstances under which it was committed are to be considered, and the power to require bail (or deny it) is not to be used in such manner as to make it an instrument of oppression. It is certainly true that there have been and will always be cases for any of the capital offenses, where, notwithstanding the jury is given the power to inflict the death penalty, they will not do so, and should not do so.

The question to be determined in this case is whether, under the nature of the offense charged, and the circumstances under which it was committed, upon a consideration of all the evidence, the court, in a well-guarded and dispassionate judgment, should reach the conclusion that the death penalty, if the law is properly enforced, will be imposed. If so, bail should be denied. If not, then bail should be granted. Of course, there must necessarily be lodged with the trial judge the exercise of a reasonable discretion, based on the character of judgment above designated, and upon appeal this court 'must, indulge the presumption that his judgment is correct.

In this case, after a thorough consideration' of the evidence, we have reached the conclusion that in all probability the jury will' not, and probably should not, inflict the death penalty, hence bail should have been granted. We do not mean to intimate that the discretion given to the jury to assess capital punishment should not be imposed in this case. That matter is left to them, guided properly by the trial judge, and properly guarded by him on a motion for new trial, if the death penalty should be imposed. For a further-discussion of this question see Ex parte Russell, from Harris county, this day decided,, and to be discussed in a supplemental opinion.

The judgment of the lower court in denying bail is therefore reversed, and the appellant is hereby granted bail in the sum of $5,000. Upon the execution of proper bond, in accordance with law, the sheriff, having him in custody, is directed to discharge him.  