
    Ex parte JOHNSON.
    (No. 5329.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    Bail &wkey;>49 — Murder—Evidence.
    In a homicide case, held, that the state had not sufficiently met the burden imposed upon it to establish a case of murder in the first degree, so as to warrant the court in refusing the accused bail.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Leonard Jolinson was indicted for murder. From an order and judgment refusing him bail, he appeals.
    Reversed.
    Dorough, Crumpton & Lincoln, of Texa-kana, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the Statq.
   LATTIMORE, J.

This is an appeal from the order and j'udgmerit of the criminal district court of Bowie county, refusing.the relator bail. Relator stands charged by indictment with the offense of murder, alleged to have been committed on the 28th day of December, 1918, and the lower court, after hearing the evidence, entered its order remanding, the relator to the custody of the sheriff of said county, from which he has appealed.

We forbear any extended discussion of the evidence in this case, in view of the fact that it will be tried in the courts. This court, in the case of Ex parte Firmin, 60 Tex. Cr. R. 226, 131 S. W. 1116, holds that the burden is upon the state to establish a case of murder in the first degree, and cannot be upon the relator, and that unless the record of the case, as presented to this court, shows that the state has made out that sort of case, bail will be granted.

The record discloses no evidence of ill will between the parties prior to the night of the 25th of December, 1918, at which time the uncontradicted evidence shows that deceased, while under the influence of liquor, made an assault upon the relator, and ran him away from the place where he was staying, and used much rough language towards him, and apparently towards his wife. The wife and sick baby of relator also left the house, and the wife testified on this hearing that when she got to her husband, and told him what language the deceased used toward her, that he walked the floor and cried. The evidence further shows that either the next day or the day following relator sent word to the deceased that he wanted to see him and make friends, which meeting, as requested, was by the deceased refused. Subsequently the trwo men met on the morning of the'28th, and the shooting occurred.

The record as made in the court below is not such as to satisfy this court’s mind that the state has met the burden imposed upon it, and the judgment of the lower court is reversed, and bail fixed in the sum of $7,500, upon giving which the relator will be discharged.  