
    Ex parte HILL.
    (No. 4966.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    1. Rail <S=>43 — Homicide—Right to Bail— “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, the word “evident” means that _ unless it is clear not only that accused is guilty, but that the jury, if they enforced the law, would probably assess capital punishment, accused is entitled to bail.
    [Ed. Note. — For other deflations, see Words and Phrases, First and Second Series, Evident.]
    2. Bail <s=j49 — Homicide—Right to Bail.
    In prosecution for murder, evidence held not such as to warrant denial of bail.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    • John W. Hill, under indictment for murder, was refused bail, and he appeals.
    Reversed, and bail fixed.
    Martin & McDonald, W. D. Caldwell, and Warren W. Moore, all of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The relator, under indictment for murder, was refused bail, and prosecutes this appeal.

Omitting any comment on the facts, and stating only enough of the evidence to indicate the environments of the transaction, we find from the record presented that there is evidence that both the deceased and appellant were officers authorized to carry arms, that a short time, from one-half to three-quarters of an hour, before the homicide the deceased assaulted appellant in the Driskell Hotel at Austin, and during the progress of the assault drew his pistol and struck appellant a blow on the head; that in the affray the deceased received an injury to his finger; that he went to the office of a doctor several blocks from the Driskell Hotel and had the wound dressed; that appellant walked up Congress avenue, the main street of the city, and at a point about four blocks from the Driskell Hotel appellant shot and killed deceased.

We gather from the evidence that at the time of the homicide deceased had just turned the corner from one of the streets leading into Congress avenue and started south, and that appellant had stopped a moment before in front of a news stand and cigar store a short distance south from the corner mentioned.

The keeper of the store testified that after he and appellant had exchanged a few words he saw appellant draw his p'istol and shoot several times, and, turning, saw the deceased fall. Another witness said that while across the street he heard a shot, wheeled, and saw a man standing near the corner; after a very short interval he heard another shot, and saw J the man apparently in a sitting position with both hands on his stomach, apparently going down gradually; that the firing continued, and he saw a flash and puff of smoke from the man described, who immediately thereafter collapsed and rolled on the sidewalk; that all occurred suddenly, covering a very short time; that four shots came from the south, and one from the man who was killed, who was identified as deceased named in the indictment; that immediately after deceased fired he saw a pistol fall from his hand; that deceased’s pistol was examined, and found to have been fired one time.

A witness who was assistant game warden testified that he met deceased a few days before the homicide, and was asked by him if appellant was still deputy, and expressed the wish that the six-shooter should be taken off of him, and said, “If you don’t, he and I cannot stay in the same town with a sixshooter.” That witness said he declined to deprive appellant of the six-shooter, and communicated to him the conversation prior to the difficulty at the hotel.

Article 1, § 11, of the Constitution provides:

“That all prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident.”
“Evident” has been defined as “plain, clear obvious.” Ex parte Boyett, 19 Tex. App. 45. Mr. Branch states the rule as follows:
“The rule is ‘all prisoners shall be bailable.’ The exception is ‘when the proof is evident’ that not only the accused is guilty, but that the jury will, if they properly enforce the law, probably assess capital punishment, this conclusion to be reached by the well-guarded and 'dispassionate judgment of the court or judge passing upon the question.”

Tested by this rule, which is supported by the decisions of this court, we believe that the trial court was in error in holding that appellant was not entitled to bail. Cases in point are Ex parte Smith, 23 Tex. App. 125, 5 S. W. 99; Ex parte Russell, 71 Tex. Cr. R. 377, 160 S. W. 76; Ex parte Stephenson, 71 Tex. Cr. R. 380, 160 S. W. 77, and cases cited.

A reversal of the judgment of the trial court refusing hail is ordered, and appellant is hereby granted bail in the sum of $6,000, upon the execution mf which, with sufficient sureties, he will be discharged pending' the trial of this case on its merits.  