
    Ex parte FRANCIS.
    (No. 6865.)
    (Court of Criminal Appeals of Texas.
    Feb. 22, 1922.
    Rehearing Granted April 5, 1922.)
    1. Habeas corpus @=>l 13(9) — 'Transcript of proceedings in vacation must be certified by judge.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 950, the certificate to the transcript of proceeding on habeas corpus heard in vacation may be prepared by any person under the direction of the judge and certified by the judge, and a transcript certified hy the district clerk and showing that the proceedings were in vacation is insufficient to give jurisdiction on appeal.
    2. Habeas corpus @=>113(6) — Notice of appeal is essential to jurisdiction of Court of Criminal Appeals.
    A notice of appeal from the order of the judge remanding relator to custody without bail is essential to the jurisdiction of the Court of Criminal Appeals to review the proceedings.
    On Motion for Rehearing.
    3. Habeas corpus @=>85(1) — State must prove express malice to justify denial of bail.
    For the state to sustain its burden to produce proof evident justifying refusal of bail ■within the meaning of the Constitution, it is necessary for the state to prove express malice.
    4. Habeas corpus <©=385(1)—Evidence held not to sustain refusal of bail.
    Testimony by only one of several persons present at the homicide that defendant told deceased to “stick them up,” and when deceased raised his hands dftfrsndant fired four shots .and killed deceased, held insnflicient to sustain an order refusing bail in the absence of testimony as to the position of the hands of deceased, or other 'circumstances, immediately preceding defendant’s order to deceased.
    5. Bail ⅞=»43—Accused may be entitled to bail though homicide was unjustifiable.
    Defendant accused of homicide may be entitled to bail, even though the homicide was not justifiable.
    Appeal from District Court, ■ Cottle County; J. H. Milam, Judge.
    Habeas corpus proceedings by Alvin Francis to procure his release on bail. From an •order of the district judge remanding relator without bail, relator appeals.
    Relator discharged on bail in the sum of $5,000.
    McDonald &• Cummings, of Wichita Falls, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the (•State.
   HAWKINS, J.

This appears to be an appeal from an order of the district judge remanding relator without bail. The record is not in condition to show that the jurisdiction ■of this court has attached. The order of the .judge remanding relator is as follows:

“In the District Court of Cottle County, Tex. In Vacation. Ex Parte Alvin Francis. I am ■of the opinion that the said Alvin Francis is legally held in custody and under restraint of his liberty by the said respondent, Morgan Wright, sheriff of Cottle county, Tex.
“It is therefore ordered and adjudged that •the application of the said Alvin Francis herein be denied, and that the said Alvin Francis be, and is hereby, remanded to the custody of said respondent, Morgan Wright, sheriff, aforesaid. J. H. Milam.”

It will be observed from the foregoing order that the hearing was had in vacation. The transcript is certified to by the district clerk of Cottle county. Article 950, Vernon’s C. C. P., provides that, when the proceedings upon habeas corpus take place before the ■court in session, the transcript shall be prepared and certified to by the clerk; but, when had before the judge, in vacation, the transcript may be prepared by any person under the direction of the judge, and certified by such judge. There is no' certificate by the judge as to the corieetness of the transcript in the instant case, and to that extent the provisions of article 950 have not been complied with.

The transcript shows no notice of appeal from the order of the judge remanding relator. Without notice of appeal this court has no jurisdiction to review the proceedings, even though the transcript were properly certified to. Ex parte Cates, 89 Tex. Cr. R. 504, 231 S. W. 396; Ex parte Shearman, 89 Tex. Cr. R. 341, 230 S. W. 691.

For the reasons stated, the appeal is dismissed. • ■

On Motion for Rehearing.

MORROW, P. J.

The record having been perfected, the order of dismissal is set aside, and on the merits of the case we have to say that the relator is held without bail upon a charge of murder, and brings the matter here for review.

The relator, a young man about 20 years of age, shot and killed Walter. Tucker, an older man. Four shots were fired. The homicide took place in a small building, about 20 by 40 feet, which was used as a grocery store. Several persons were present. Both the relator and the deceased had been in the building for some minutes; the deceased coming in after the relator had entered the store. It seems that a general conversation had been in progress for a few minutes. Some goods were brought into the store, and all the parties present except the relator and the deceased went to the rear of the building to examine the articles; the deceased and relator remaining near the fire and conversing with each other. The relator said, “Stick them up,” at the time having his pistol in his hand. The deceased put his hands up, at the same time sliding off the counter, and the relator began shooting, and continued to do so until the deceased fell.

There was inquiry made as to the position of the hands of the deceased at the time he was directed to “stick them up,” but little is disclosed on the subject. There was only one eyewitness used by the state.

We are of the opinion that, on the record, the bail should not have been denied. The burden was upon the state to produce proof evident of the offense. To do this, within the meaning of the Constitution, we think it was necessary to prove express malice. Ex parte Firmin, 60 Tex. Cr. R. 370, 131 S. W. 1113; Ex parte Townsley, 87 Tex. Cr. R. 252, 220 S. W. 1092; Ex parte Young, 87 Tex. Cr. R. 413, 222 S. W. 242.

The cause of the homicide is unexplained. The facts evidently are only partially developed, as several eyewitnesses were not called to describe the occurrence: There is some evidence of the previous difficulty, though at the immediate time of the shooting the parties were talking, and their words were not heard by others. The attitude of the deceased is not fully described. The -presumptions are not indulged against the relator. He may have been unjustifiable and still entitled to bail. Cordono v. State, 56 Tex. Cr. R. 459, 120 S. W. 471; Rice v. State, 51 Tex. Cr. R. 283, 103 S. W. 1156; Farrer v. State, 42 Tex. 271. Tbe presumption of express malice is not against bim. Hamby v. State, 36 Tex. 523; Dougherty v. State, 59 Tex. Cr. R. 464, 128 S. W. 398; Potts v. State, 56 Tex. Cr. R. 44, 118 S. W. 535.

Tbe relator, in our judgment, should be discharged on bail in the sum of $5,000; and it is so ordered. 
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