
    Ex parte RUSSELL.
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1913.)
    1.Bail (§ 43) — Bailable Offenses — “Capital Offense” — “Evident.”
    Under Const, art. 1, § 11, providing that all prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident, parties charged with an offense that may be punished capitally are entitled to bail unless the evidence leads a well-guarded and dispassionate judgment to the conclusion that an ■offense has been committed, that the accused is the guilty agent, and that he will be punished capitally if the law is properly administered; a “capital offense” being one punishable by death, and “evident” meaning plain, clear, and obvious.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.
    
    For other definitions, see Words and Phrases, vol. 1, p. 958; vol. 3, pp. 2525, 2526.]
    2. Bail (§ 43) — Bailable Offenses — Capital Offense.
    Under the recent act of the Legislature abolishing the degrees of murder and providing that murder shall be punished by death or imprisonment for life or for any term of years not less than five, all murder cases are not made non-bailable or capital within Const, art. 1, § 11, providing that all prisoners shall be bailable by sufficient sureties unless for capital offenses when the proof is evident, and bail should be granted a person charged with murder unless the proof is evident that, if the law is properly administered, the conviction will be of a capital offense.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.]
    3. Bail (§ 43) — Bailable Offenses — Capital Offense.
    A penitentiary convict, while being taken on the_ train to a state farm, jumped through the car window and attempted to escape, whereupon the transfer agent, who was assisting in taking the prisoners to the farm in the performance of his duty, shot and killed such convict. No ill will between the agent and the convict appeared, and the killing apparently occurred only by reason of the escape. Held, that, under the rule that bail should be granted unless the proof is evident that, if the law is properly administered, the conviction will be of a capital offense, the agent, who was charged with murder, was entitled to bail, especially in view of Pen. Code 1911, art. 1094, § 10, providing that a person imprisoned in the penitentiary or attempting to escape therefrom may be killed by the officer having legal custody of him if his escape can in no other manner be prevented.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Application by Bud Russell for a writ of habeas corpus for the purpose of obtaining bail. From a judgment denying bail, he appeals.
    Reversed, and bail granted.
    Kahn, Williams & King, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAYIDSON, J.

After reviewing the case, the court is of the opinion that relator is entitled to bail. Therefore the judgment is reversed, and the sheriff of Harris county is ordered to take bail in the sum of $5,000 conditioned as the law requires. Upon the execution of this bond the relator will be discharged from custody. There are some law questions involved in the case that are not here discussed. In an opinion to be filed later they will be taken up and reviewed, and that opinion filed with the record. '

The judgment is reversed, and bail granted in the sum of $5,000.

Additional Opinion.

Bail was granted relator in the sum of $5,000. The reasons for the decision were not stated at the time. We now proceed to state some of the legal reasons for the ruling of the court with reference to the recent change in our murder statute.

The Constitution, art. 1, § 11, reads as follows: “All prisoners shall be bailable by-sufficient sureties, unless for capital offenses when the proof is evident,” etc. The general proposition enunciated in the Bill of Rights, therefore, is that all prisoners shall be bailable with the exception stated, that unless for capital offenses when the proof is evident. In order to make the case nonbailable under this clause of our Constitution, the proof must be evident that there has been committed a capital offense. Construing this, it has been held that all parties are entitled to bail when charged with an offense that may be punished capitally, unless the evidence is strong and clear and would lead a well-guarded and dispassionate judgment to the conclusion that an offense has been committed, and that the accused is the guilty agent and would be punished capitally if the law is properly administered. Of course a capital offense is one which may be punished by death. There can be no capital offense unless the punishment is by death. The word “evident” means plain, clear, and obvious. Ex parte Boyett, 19 Tex. App. 45. The cases laying down the above proposition may be found collated in Mr. Branch’s Criminal Law, §§ 93, 96.

Prior to the recent act of the Legislature, murder was divided into two degrees. The first degree was predicated upon express malice, lying in wait, poisoning, etc. The second degree was constituted by the absence of express malice or those circumstances which constituted murder in the first degree on one side and such matters as would reduce the homicide by reason of extenuating circumstances or mitigation to manslaughter or negligent homicide or excused or justified the act of killing. The punishment for murder in the first degree under the old law was death or life imprisonment in the penitentiary ; for murder in the second degree any term of years in the penitentiary not less than five. The new or amended statute abolishes the two degrees of murder and provides the punishment for murder shall be death, life imprisonment, or any term of years in the penitentiary not less than five. This definition of murder with its prescribed punishment does not and cannot affect the constitutional rule authorizing bail in all cases except capital offenses where the proof is evident. The same punishment is prescribed in cases of rape or robbery by firearms. But in ail such cases the proof, in order to deny bail, must be evident that the offense is capital. It does not follow that, because the definition and punishment for murder has been changed, therefore all murder cases are nonbailable. This is borne out by the very terms of the statute itself, because such punishment is graduated from five years in the penitentiary to the death penalty. If the Legislature had intended to make all murder nonbailable or capital, they would have used appropriate language and fixed the punishment of death, but such is not the statute. The rule laid down by the Legislature would show and indicate that it was not the purpose of it to cause a conflict between the act of the Legislature and the provisions of the Bill of Rights. The Legislature intended, as did the makers of the Constitution, to deny bail only when the proof is evident of a capital offense, or that the party would be punished with death under the rules prescribed and well known to our jurisprudence. The circumstances attending each killing must be the guiding rule as to whether the offense is capital or not and of course whether bailable or not.

It is not the purpose of this opinion to go into a long treatise or discussion of these matters but simply to reiterate the law, as it has been declared not only by the Constitution but understood thoroughly in the jurisprudence of the state, that in order to refuse bail the proof must be evident of a capital offense; that is, if the law is properly administered, the conviction would be of a capital offense. There has been a great number of cases of murder that are not capital. While the Legislature abolished the distinction between the two degrees of murder, it was not the purpose of that act, as evidenced by its terms, to make all cases non-bailable. There was simply a general definition given of murder, prescribing the punishment from minimum to maximum, as in the case of robbery by firearms or rape.' That robbery and rape eases are nonbailable simply by reason of the fact the parties may be punished capitally would depend upon the circumstances attending the case as to the proper conclusion of the enormity of guilt.

Applying the rules to the case in hand, stating just enough of the facts to show the environments of the case, the record discloses that appellant was the transfer agent of penitentiary convicts. That in obedience to his duty he was assisting two other officers in carrying a lot of prisoners from Huntsville through Houston to what is known as the Sugar Land or Imperial State Farm. While at Houston the prisoners were transferred from one train to another and were securely locked in pairs. The deceased, one of the prisoners, managed in some way to unlock the chain around his neck and, jumping through the car window, sought to escape. After the deceased escaped from the car he was shot and killed by relator. It is unnecessary to go into a detail of the circumstances further than stated. They will become matters for investigation, should relator be tried before a jury. Our statute provides (article 1094, § 10) that “a person under sentence of death or imprisonment in the penitentiary, or attempting to escape from the penitentiary, may be killed by the officer having legal custody of him if his escape can in no other manner be prevented.” The deceased was a penitentiary convict and attempting to escape and was killed by the relator who had him in legal custody. Now, relator would be justified or excused under the statute unless deceased’s escape could in some other manner be prevented. From the evidence there was no ill will shown between relator and the deceased, and, as we gather from the facts, the killing occurred only by reason of the escape. This much of the evidence has been stated in order to justify the conclusion of this court that the case is bailable under the rules of law as applied to this record. The trial court was therefore not justified in refusing bail.  