
    Ex parte HICKOX.
    (No. 6506.)
    (Court of Criminal Appeals of Texas.
    Oct. 12, 1921.)
    1. Bail <&wkey;43 — A matter of right In capital cases, except where proof is “evident.”
    Bail is a matter of right in capital cases, except when the proof is “evident,” which means that, if the evidence is such as to lead a dispassionate mind to the conclusion that accused is guilty, and that if the law is properly administered a conviction would be had of a capital offense, bail should be denied, otherwise it should be granted.
    [Ed. Note. — ,For other definitions, see Words and Phrases, First and Second Series, Evident.]
    2. Bail <&wkey;49 — Decision of trial judge as to proof of capital offense entitled to weight on appeal.
    The decision of the trial judge that the proof of a capital offense was “evident,” justifying the refusal of bail, is entitled to weight on appeal, but has not the standing of a verdict, and it is the duty of the Court of Criminal Appeals to examine the evidence and determine whether bail should have been denied.
    3. Bail &wkey;>49 — Evidence held to warrant refusal of bail.
    On application for bail in a murder prosecution, held that proof of a capital offense was “evident,” so that a refusal of bail was justified. Morrow, P. J., dissenting.
    Appeal from District Court, Tom Green County; C. E. Dubois, Judge.
    T. F. Hickox was charged with murder, and he appeals from a judgment refusing him bail.
    Affirmed.
    Snodgrass & Dibrell, of Coleman, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

This is an appeal from! a judgment of the district court of Tom Green county, refusing bail to appellant, T. F. Hickox, who is charged with the murder of one Lamar Schrier.

The rule is that bail is a matter of right in capital cases, except when the proof is evident, which is taken to mean that if the evidence is such as to lead a dispassionate mind to the conclusion that the accused is guilty, and that if the law is properly administered a conviction would be had of a capital offense, in such an event bail should be denied, otherwise it should be granted.

In the instant case deceased was in a garage in the town of Rankin in company with one Nevell. Appellant and his son Tom came into said building while said other parties were there. Tom said to deceased, “Lamar, you beat up my little brother, but you cannot beat me.” Deceased replied, “I did not,” and Tom said, “You are a <3 — -—d d-n liar,” and deceased said, “Let’s not have any trouble,” and appealed to appellant to speak to Tom and “let’s not have any trouble,” and about this time Tom slapped deceased, and they began fighting. Nevell immediately left the building, going to look for an officer to have him stop the trouble, and says he hoard the shooting not longer than a minute after he left the building. A witness named Poole said he was standing a few feet from the parties, and saw Tom! and deceased clinched, the latter having his arms about Tom’s shoulders; that the deceased was backing and Tom following him, and that in this position the deceased went backward 7, 8, or 10 feet; that appellant was walking along beside them as deceased was backing, and at this juncture witness said he saw appellant put out his hand and heard the report of a pistol and saw deceased fall. Another witness said that he saw appellant approach deceased with a pistol in his hand, and when within 2 or 3 feet of him he shot deceased in the back; that deceased fell, and appellant and his son turned and walked out of the garage, and witness did not hear them say a word to any one. The physician who examined the body of deceased said he was shot in the small of the back, the shot ranging downward.

The only witness who testified for the appellant was his wife, and her evidence bore upon the question apparently of his ability to make bond.

It thus appears that appellant’s son attacked deceased in the presence of the appellant ; that deceased had remonstrated with, Tom, and had asked appellant also to-speak to Tom and prevent trouble; that deceased was retreating; that he was not making any demonstration with any weapon of any kind; that appellant kept pretty close to his son and deceased as the latter was going backward, and that, after deceased had backed from 7 to 10 feet, appellant shot him in the back with a pistol, setting fire to the clothing of deceased; and that then, without a word of explanation or statement of any kind, appellant and his son left the building.

The decision of the trial judge that the proof of a capital offense was “evident” is entitled to weight on appeal, but has not the standing of the verdict of a jury. The duty rests upon this court to examine the evidence and for itself determine whether bail should have been .denied. Ex parte Stephenson, 71 Tex. Cr. R. 380, 160 S. W. 77. We have carefully examined the testimony, and find nothing in the record suggesting that the conclusion reached by the trial judge was not the proper one.

The judgment refusing bail is affirmed.

MORROW, P. J.

(dissenting).

The burden is upon the state to produce “proof evident” of a capital offense. To discharge this burden, proof of express malice is required. Firmin v. State, 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.

That appellant shot deceased while he and appellant’s son were fighting does not alone suffice. Account should be taken of the state of appellant’s mind. He may have been wholly unjustifiable, and still not guilty of a capital offense. 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. Inferences adverse to the accused are not to be drawn from the absence of evidence which the state could have produced. Express' malice is not presumed, but must be proved. Hamby v. State, 36 Tex. 523; Dougherty v. State, 59 Tex. Cr. R. 464, 128 S. W. 401; Potts v. State, 56 Tex. Cr. R. 44, 118 S. W. 535.

The state revealed the claim that appellant’s son had been “beat up” by deceased. The effect of the beating on appellant’s mind would depend upon the nature and cause of the beating, and its proximity in time to the homicide. Evidence of these matters was at the command of the state.

The idea of conspiracy with Tom Hickox seem’s not proved, but negatived, by the finding of the trial judge that Tom Hickox was entitled to bail in a small sum. The inferences from the state’s evidence that appellant's; passion was aroused to a degree preventing deliberation by the previous conduct of deceased in connection with the present encounter are not overcome by any evidence found in the record. If facts to the contrary existed, they should have been introduced by the state. In their absence, the presumption that they did not exist should obtain.

In my opinion, the judgment should be reversed. 
      <gnoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and I-ndexes
     