
    Ex parte SATTERWHITE.
    (No. 11429.)
    Court of Criminal Appeals of Texas.
    Nov. 2, 1927.
    Rehearing Denied Nov. SO, 1927.
    Bail !§=>43 — Defendant accused of rape held entitled to bail, where defensive issues and mitigating circumstances, if believed, would prevent death penalty.
    Where defensive issues and mitigating circumstances raised by evidence under indictment for rape would not, if believed by jury, result in assessing death as a punishment on defendant’s conviction, defendant was entitled to release on bail.
    Commissioners’ Decision.
    Appeal from District Court, Brazos County; W. C. Davis, Judge.
    On habeas corpus. Elwell Satterwhite was denied hail, and he appeals.
    Judgment reversed, and hail granted.
    Jjamar Bethea, of Bryan, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Relator was charged by indictment in the district court of Brazos county with the offense of rape by force, threats, and fraud. Upon a habeas corpus hearing, he was denied bail. The facts and circumstances of this case mate it inadvisable we think for this court to make any extended statement or analysis of them. Suffice it to say that the evidence exhibited in the record is sufficient to raise defensive issues and mitigating circumstances, which, if believed by the jury, would not result in a verdict assessing death as a punishment.

For a full statement of the law which governs this court in cases of this character, see Ex parte Cuaron, 101 Tex. Cr. R. 175, 274 S. W. 610; Ex parte Hicks, 95 Tex. Cr. R. 450, 254 S. W. 1109; Ex parte Harris, 90 Tex. Cr. R. 246, 234 S. W. 398; Ex parte Dooley, 74 Tex. Cr. R. 650, 170 S. W. 303; Ex parte Stevens, 85 Tex. Cr. R. 449, 213 S. W. 656; Ex parte Burton, 75 Tex. Cr. R. 105, 170 S. W. 308; Ex parte Townsley, 87 Tex. Cr. R. 252, 220 S. W. 1092; Ex parte Young, 87 Tex. Cr. R. 415, 222 S. W. 242.

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

PER OURTAM. 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.

On Motion for Rehearing.

LATTIMORE, J.

The state, through her state’s attorney and private prosecution, files an able and exhaustive motion for rehearing herein, which has caused us to carefully review the facts, but has not led us to change our conclusion regarding the disposition of the ease. The alleged rape must have occurred in the presence of a young man friend of the prosecutrix who was with her in the ear during the evening, and, as she testified, was driving the car part of the time at least while appellant was endeavoring to aceom-' plish his purpose. This young man is not used as a witness. It is disclosed by the cross-examination of the prosecutrix that she was of such experience as to have been out at night with various young men, some of whom hugged and kissed her at different times. She seems to have been drinking various liquors with them upon these trips. We are not able to believe that upon a fair presentation of this case a jury will fix the punishment of this relator, if convicted, at death.

The motion for rehearing will be overruled.  