
    Ex parte FERAY.
    (No. 10034.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1926.)
    1. Bail <&wkey;49 — Unless it is evident that on trial fair jury, considering evidence, would likely inflict death penalty, bail should be allowed.
    Unless testimony before court makes evident fact that on trial fair jury, considering it, would likely inflict death penalty, bail should be allowed.
    2. Bail-&wkey;>43 — If killing was unexplained, bail should be granted.
    If killing in question was unexplained, bail should- be granted.
    3. Bail &wkey;>49 — Uncontradieted explanation of killing held to require grant of bail.
    On uncontradicted testimony by accused that deceased was aggressor and struck him heavy blow with vase, practically dazing him and causing him to shoot while in süch condition, bail should have been granted, and will be granted on habeas corpus.
    Appeal from District Court, Ellis County; W. L. Harding, Judge.
    Habeas Corpus by E. B. Feray. From a judgment -denying bail, petitioner appeals.
    Judgment reversed, and bail granted.
    Tom Whipple, of Waxahachie, for appellant.
    'Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. .State’s Atty., of Tyler, for the State.
   BATTIMORB, J.

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 uncontradieted 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 $5,000. 
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