
    (85 Tex. Cr. R. 527)
    Ex parte FUNK.
    (No. 5466.)
    (Court of Criminal Appeals of Texas.
    June 25, 1919.)
    1. Habeas Corpus &wkey;s85(l) — Eobmeb Jeop-akdy — Bail—Fraud ob Bad Faith — Presumption.
    Where relator had been indicted for murder, and had been granted bail, and was then indicted for robbery with firearms involving the same transaction, and refused bail on Ms application, fraud or bad faith cannot, on habeas corpus, be imputed to the grand jury returning the indictment in the robbery case, or the court and county executive officers.
    2. Habeas Cobpus <&wkey;31 — Scope op Remedy-Question op Former Jeopardy.
    Where relator, having been indicted for murder and granted bail, was then indicted for robbery with firearms, whether the offense of murder and the offense of robbery are identical transactions is a question of fact, dependent upon evidence produced before the trial court on the trial of such eases, and cannot be considered on application for habeas corpus.
    Appeal from District Court, Bexar County ; W. S. Anderson, Judge.
    Application of Delmar Funk for habeas ■corpus to review a denial of bail after his indictment for robbery with firearms.
    Judgment of lower court reversed, and bail fixed.
    W. W. Walling and Chambers, Watson & Wilson, all of San Antonio, for appellant.
    C. M. Cureton, Atty. Gen., and W. J. Townsend, and E. A. Berry, Asst. Attys. Gen., for the State.
   LATTIMORE, J.

This is an appeal from an order and judgment of the criminal district court of Bexar county, refusing an application for bail on behalf of relator.

It appears that the relator is and has been under indictment in said court for the offense of murder, and that upon application in said murder case he was granted bail, and his bail fixed at the sum of $5,000. Subsequently he was indicted for the offense of robbery by the use of firearms, and it is in the latter case that this application is presented. Upon a hearing in the trial court, the relator was remanded to the custody of the sheriff of Bexar county, and bail was refused.

Without writing at length in the matter, we merely call attention to the fact that we are unable to differentiate this case in any way from the case of Ex parte Jones, 200 S. W. 1086 and Ex parte Spanell, 212 S. W. 172, decided at this term. Our views upon the matters raised and presented in this case are fully set forth in the cases referred to. We will not impute fraud or want of good faith, either to the grand jury returning the indictment in the instant case or to the court and executive officers of Bexar county.

As to whether the offense of murder, as charged in the former indictment, which is still pending, and the offense of robbery with firearms, in which this application is. sued out, are one and the same transaction, is a question of fact, dependent upon evidence which may be produced before the trial court upon the trial of said two offenses. It has been often held that the question of jeopardy was not a proper one to be decided by this court on a habeas corpus hearing.

The case being submitted to us on an agreed statement of facts, and it appearing that appellant has been tried on said facts for murder growing out of this transaction, and a less penalty given than death, and that his bail was fixed by the trial court in the murder case at $5,000, the judgment of the lower court will be reversed, and bail fixed at $5,000 in this case. 
      
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