
    Ex Parte E. L. Feray.
    No. 10034.
    Delivered January 25, 1926.
    Habeas Corpus — Bail—Right to — Granted.
    Where bail is denied an accused charged with murder, and the evidence of the State only shows an unexplained killing, without any evidence of express malice, bail will be granted on appeal, and it is so ordered in this case.
    Appeal from the District Court of Ellis County. Tried below before the Hon. W. L. Harding, Judge.
    Appeal from an order remanding appellant to the custody of the sheriff of Ellis County, without bail, on hearing of a writ of habeas corpus, before said court. Bail granted in the sum of five thousand dollars.
    No brief filed for appellant.
    
      Sam D. Stinson, State’s Attorney, and Nat Gentry, Jr., Assistant State’s Attorney, for the State.
   LATTIMORE, Judge.

From a judgment denying bail on habeas corpus hearing before the District Court of Ellis County, appeal is taken.

The rule applicable in determining whether one accused of crime is entitled to bail is too well settled to need citation of authorities to support the proposition that unless the testimony being considered by the court makes evident the fact that upon trial a fair jury considering same would likely inflict the death penalty, bail should be allowed. We do not think the testimony before us in this case leads to any such conclusion.

If it was an unexplained killing, under all the authorities, bail should be granted. There is an explanation in this case, and but one. The State offers no proof of a motive or of the fact that the explanation made by appellant, both on the' witness stand on this hearing, and immediately after the homicide on the night of its occurrence, was false. Appellant then stated and now testifies that deceased was the aggressor and struck him such a blow with a heavy imitation cut-glass vase as to practically daze him and to cause him to shoot her while in that condition. Extended discussion of the facts is not necessary. The. above uncontradicted explanation of the killing leaves the record in such shape as that bail should have been granted.

The judgment denying bail will be reversed, and bail granted in the sum of five thousand dollars.

Reversed and remanded.  