
    Ex parte HICKS.
    (No. 8231.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1923.)
    1. Bail &wkey;s49—Proof evident of capital offense to warrant denial of ball must show express malice.
    Proof evident of a capital offense committed by accused which will warrant denial of bail must, establish express malice by direct or circumstantial evidence.
    2. Bail &wkey;>49—When bail not matter of right in capital case stated.
    Where evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that a capital offense was committed, and that accused was the guilty agent, and that he would probably be punished capitally if the law is administered, bail is not a matter of right.
    3. Ball <&wkey;49—One indicted for murder held entitled to bail.
    Evidence of unfriendly relations with deceased for nine months previous to the homicide, and evidence of the actual killing held insufficient to constitute proof evident of a capital offense and warrant denial of bail.
    Appeal from District Court, Cherokee County; D. D. Guinn, Judge.
    Application by Jeff Hicks for bail. From an order denying it, he appeals.
    Bail granted.
    Perkins & Perkins, and Norman, Shook & ■Gibson, all of Rusk, for appellant.
    Tom T. Garrard, Jr., State’s Atty., of Midland, Grover C. Morris, Asst. State’s Att.v., of Devine, John B. Guinn, of Jacksonville, and Simpson, I.asseter & Simpson, of Tyler, for the State.
   MORROW, P. J.

Charged with murder, relator applied for bail. He shot and killed ■Ocie Payne.

To authorize the denial of bail, the state assumes the burden of producing “proof evident” of a capital offense committed by the accused. This is not done in the absence of proof of express malice by direct or cir- • cumstantial evidence. Relator may have been wholly without justification in the shooting of Payne, and still not be guilty of a capital offense. Cordono v. State, 56 Tex. Cr. R. 459, 120 S. W. 471; Farrer v. State, 42 Tex. 271.

There may be facts in evidence which would support an inference of express malice. There are others, however, which suggest mitigation. A correct rule is thus stated in Ex parte Smith, 23 Tex. App. 100, 5 S. W. 99:

‘.‘If the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been com-, mitted; that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered, bail is not a matter of right.”

Otherwise, it is a matter of right. Ex parte Townsley, 87 Tex. Cr. R. 252, 220 S. W. 1092.

There was antecedent conflict and unfriendly relations of nine months’ duration between relator and deceased. Immediately before the homicide, the deceased made some remarks to his companions, using the name of the relator. The relator went from his place of business to a confectionery nearby. Deceased got out of the automobile in which he was riding, and approached the balcony upon which the relator stood. While he was about to open the door, the relator used words indicating that the deceased was displaying a knife in a threatening manner. Deceased turned towards the relator, and said something, the nature of which the evidence does not disclose. 'Shots were then fired. Relator, on leaving, referred to previous threats by deceased. These facts were proved by the state.

McKnight, who might have explained the nature of the previous difficulty, was not used as a witness; nor is his absence accounted for. The parties were both of long residence and good standing in the community. ' 'Relator, a man 55 years of age, bore a good reputation for peace and quietude. The facts attending and leading up to the killing are manifestly not fully developed.

On his arrest some three weeks before ho was indicted, relator was allowed bail by the examining court, upon the agreement of state’s counsel, in the sum of $10,000. While at large on bail, relator was indicted, and the county attorney conceded that the case was bailable, and agreed on the amount, but, after employment of attorneys by private prosecution, the agreement was rescinded, and the matter submitted to the district judge.

No recital of the facts in detail has been made. Upon the record, it is believed that bail should not have been denied. It is therefore granted in the sum of $10,000. 
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