
    Ex Parte Thomas John Elsmore.
    No. 19566.
    Delivered December 22, 1937.
    
      The opinion states the case.
    
      W. A. Wright, of San Angelo, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   CHRISTIAN, Judge. —

Relator is charged by indictment with the offense of murder. He was heretofore convicted and his punishment assessed at confinement in the penitentiary for 25 years. On appeal to this court the judgment was reversed for the reason that the trial court failed to charge on murder without malice. See Elsmore v. State, 104 S. W. (2d) 493. Upon a second trial the jury failed to agree, and a mistrial was declared. Thereafter, after a hearing under a writ of habeas corpus, relator was denied bail. Hence this appeal.

Bail is a matter of right unless the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered. Ex parte Powell, 298 S. W., 575. We are of opinion that the testimony before us does not make evident the fact that upon a trial a fair jury, considering such testimony, would likely inflict the death penalty. Under the circumstances, we are constrained to hold that the trial judge committed error in denying bail. .....

The judgment denying bail is reversed, and bail granted in the sum of $7,500.

Judgment denying bail reversed and bail granted.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  