
    Ex parte GRAYSON.
    (No. 10217.)
    (Court of Criminal Appeals of Texas.
    May 19, 1926.)
    Bail <&wkey;49 — Evidence held not to show commission of capital offense with probable infliction of death penalty, warranting refusal of bail.
    Evidence that defendant shot and killed deceased, after deceased, in fight with defendant’s father, had struck latter with a shovel and was in position to repeat, held, not to amount to proof evident of express malice and a capital offense with probable infliction of death penalty, warranting refusal of bail.
    &wkey;?For other oases see same topic and KBY-NUMB3SR in all Key-Numbered Digests and Indexes
    
      Appeal from District Court, Polk County; J. L. Maury, Judge.
    Application for bail by Materson Grayson. Prom a judgment denying bail, be appeals.
    Reversed, and bail granted.
    W. S. Poston, of Lufkin, and S. P. Hill and Cade Betbea, both of Livingston, for appellant.
    J. L. Pitts, of Conroe, Zimmie Foreman, of Livingston, Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, .for tbe State.
   MORROW, P. J.

Tbe appeal is from an order denying bail. Tbe appellant is charged by complaint with .tbe offense of murder. His is a companion case to that of B. C. Grayson (No. 10216) 283 S. W. 552. Tbe evidence is identical.

Tbe appellant is a son of B. C. Grayson,, and was described as a “boy,” bis age not being revealed. He sbot and killed the deceased after tbe latter bad struck tbe appellant’s father with a shovel which was still held in tbe bands of tbe deceased. It is not made apparent that tbe state of mind of tbe appellant is one affected by express malice. Tbe cause of. the difficulty between deceased and the appellant’s father is not made clear. Appellant was armed with a gun, apparently a shotgun, and accompanied bis father to the mill where the deeeásed was killed. He took no actual part in tbe conflict until after tbe fight began and after tbe deceased bad struck B. C. Grayson with a shovel, and was in' a position to repeat tbe blow. It is not believed that tbe evidence amounts to proof evident that this is a. capital offense which would probably be punished with tbe death penalty.

Tbe judgment denying bail is reversed and bail granted in tbe sum of $7,500.  