
    Ex parte Barbara Delores HART. Ex parte Willard Lee JOBE.
    Nos. 41011-41014.
    Court of Criminal Appeals of Texas.
    Dec. 20, 1967.
    Charles W. Tessmer, Frank S. Wright, Dallas, Donald R. Scoggins (On Appeal Only), Dallas, for appellants.
    Henry Wade, Dist. Atty., Malcolm Dade, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

These are appeals from an order in a habeas corpus proceeding refusing bail after indictment charging both appellants with murder and robbery.

Though heard together, each appellant was represented by different attorneys. No brief has been filed in behalf of appellant Jobe. We have concluded that the facts aré sufficient to support the trial court’s denial of bail as to him.

As to appellant Hart, a 34 year old housewife, another question is presented. The test in habeas copus proceedings refusing bail has been set out in our recent opinion in Ex parte Paul, 420 S.W.2d 956, delivered November 29, 1967, which is adopted in this case by reference.

As we said in Ex parte Paul, supra: “It must be remembered that to affirm an order denying bail this Court must find that the facts show a case of ‘proof evident’ including the fact that upon a trial of this case a dispassionate jury would not only convict but would assess the death penalty.”'

After careful consideration of the evidence in the light of the briefs and oral argument presented, we cannot so conclude. The judgment of the trial court denying bail to appellant Hart is reversed and bail is granted in the sum of $25,000.00.

It is so ordered.

DISSENTING OPINION IN NO. 41,011.

WOODLEY, Presiding Judge.

In this case appellant, referred to in the majority opinion as a 34 year old housewife, sought relief by habeas corpus from confinement and restraint by virtue of the indictment in Cause No. C-675155-K pending in Criminal District Court No. 4 of Dallas County, Texas.

This indictment alleged that appellant and 21 year old Willard Lee Jobe, acting together on or about November 3, 1967, did voluntarily and with malice aforethought kill Joe C. Williams by shooting him with a gun and the district attorney has given notice that the state will seek the death penalty.

After hearing the evidence the trial court overruled appellant’s contention that this was not a case where the proof of guilt was evident and the contention that a dispassionate jury would not assess capital punishment “because of the evidence with reference to the relationships of the parties involved.”

The evidence should be held sufficient to sustain the judgment of the trial court remanding appellant as well as her co-defendant to jail without bond to answer the indictment charging them with the offense of murder with malice.

BELCHER, J., joins in the above dissent.  