
    Ex parte GLENNY.
    (No. 9466.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.)
    Bail <&wkey;49 — Evidence held not to justify denial of bail to one held for murder.
    Evidence tending to show that homicide was justified or mitigated held not to justify denial of bail to one held for murder.
    Appeal from District Court, Clay County; P. A. Martin, Judge.
    Habeas corpus proceedings by C. E. Glen-ny to secure his release on bail under a charge of murder. Erom a judgment denying release, relator appeals.
    Reversed, and bail granted.
    Prank Holaday and J. P. Williams, both of Henrietta, 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 complaint with murder. That he shot and killed his son, a young man about 21 years of age, was shown without question.

While in the house occupied by the deceased and his mother, the divorced wife of the relator, he took part in a controversy over the ownership of some community property. Relator left the house, and was followed by the deceased, who had a pistol in his hand. The relator went to his automobile about 50 feet distant and took therefrom a gun, with which he shot the deceased. No witnesses saw the act of the shooting. -The mother of the deceased testified that, upon, leaving the house, relator said that he had something in his automobile that would make them give him his property, otherwise 'he would blow their brains out. The only other inmate of the house at the tifne was a lady who was visiting the relator’s divorced wife. According to this witness, the deceased entered the room occupied by her, picked up his pistol, and said that, if the relator took any property that did not belong to him, he would blow his brains out. According to her testimony, this remark was made before the relator left the house, and at a time and place where it could have been heard by the appellant. Immediately after the remark was made, relator left the house and the deceased at once followed. Soon thereafter the report of a shot was heard.

There is no impeachment of the witness last mentioned, and, so far as the record shows, she was without interest in the appellant. It is manifest that if they believed her testimony, the jury might have regarded the offense as justified or mitigated. It is believed that, upon the record before us, we would not be warranted in holding that there was proof evident of a capital offense. Illustrative cases are Ex parte Woods, 96 Tex. Cr. R. 162, 256 S. W. 595; Ex parte Harris, 90 Tex. Cr. R. 246, 234 S. W. 398; Ex parte Lewellen, 89 Tex. Cr. R. 57, 229 S. W. 326; Ex parte Burton, 15 Tex. Cr. R. 105, 170 S. W. 308; Ex parte Townsley, 87 Tex. Cr. R. 252, 220 S. W. 1092.

The judgment is reversed, and bail granted in the sum of $10,000.  