
    Ex parte HILL.
    (No. 9850.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1925.)
    1. Bail t@=49 — Burden is on state to show refusal to grant bail in murder case is warranted by evidence.
    Burden is on state to show refusal to grant bail in murder case is warranted by evidence on which jury probably would assess capital punishment.
    2.' Bail ig=o5i — Relator, charged with murder, held entitled to bail in sum of $10,000.
    Relator, charged with murder, held entitled to bail in sum of $10,000, where the statement of facts did not disclose evidence on which a jury probably would assess capital punishment.
    Commissioners’ Decision.
    Appeal from District Court, Dynn County; Gordon B. McGuire, Judge. .
    Habeas corpus by J. R. Hill to secure bail. From a judgment refusing bail, relator appeals.
    Reversed, and bail granted.
    Lockhart & Garrard, of Lubbock, for appellant.
    Sam D. Stinson, State’s Atty., of Green-ville, and Nat. Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

This is an appeal from a judgment of the district court of Lynn county on habeas corpus proceedings refusing relator bail. The record discloses that the relator was charged before Hon. R. P. Moreland, sitting as a magistrate, with the offense of murder, and was remanded by said magistrate to the custody of H. L. Johnson, sheriff of Lubbock county, ’ without bail, to await the action of the grand jury of Lynn county. Then the relator applied to Hon. Gordon B. McGuire, district 'judge of Lynn county, in term time for writ of habeas corpus for Bail, which upon hearing, was refused, and again he was remanded to the sheriff of Lubbock county.

The rule in cases of this kind is that the proof must be evident that the jury will, if they properly enforce the law, probably assess capital punishment, apd the burden is upon the state to make that showing before bail is unwarranted. We have carefully read the statement of facts, and are forced to the conclusion that same fails to meet the requirements of law authorizing the refusal of bail. Ex parte Rutherford, 97 Tex. Cr. R. 429, 261 S. W. 1042; Ex parte Glenny (Tex. Cr. App.) 272 S. W. 458; Ex parte Cuaron (Tex. Cr. App.) 274 S. W. 610, and authorities cited. We are of the opinion that the trial court erred in refusing bail, and therefore this case is hereby reversed, and bail granted relator in the sum of $10,000.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  