
    Ex parte MATHIS.
    (No. 7151.)
    (Court of Criminal Appeals of Texas.
    June 23, 1922.)
    Bail <&wkey;49 — Evidence held sufficient for reversal of judgment refusing bail.
    Circumstantial and conflicting evidence held insufficient to warrant refusal of bail to an accused who was confined on a charge of murder.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Y. S. Mathis was confined on a charge of murder, was denied bail, and he appeals.
    Reversed, and bail fixed.
    Johnson & Gilmore, of Houston, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The relator is under indictment for murder. Bail has been denied; hence this appeal.

Three children lost their lives in the tragedy. They were asphyxiated by gas. The relator was their grandfather. He and they lived in a small house, in which also lived the father and mother of the children. The relations between the father and mother were bad. The mother had gone to Port Arthur; the father, according to his testimony, left home to go to work at about 10 o’clock at night. The children were in bed. The relator slept in an adjoining room, and on the other side was the kitchen, in which 'a gas stove was setting. During the night, the gas from the stove was released, and the death of the children resulted. The relator reported the tragedy, claiming that upon rising in the morning, he found the children dead, but had no connection with the offense. .

The evidence identifying him as the murderer of the children is circumstantial. Conceding it to be sufficient to support a verdict of conviction of a capitdl crime, we do not deem it evident in the sense that it warrants a denial of bail. Upon some of the essential points the evidence is conflicting. The theories advanced by the state and the relator are at variance. The conflict in the evidence and the conclusions to be drawn therefrom are matters peculiarly within the province of the jury. The mere fact that there is conflict in this respect is not conclusive upon the right to bail, but under the evidence in the instant case, which we deem it unnecessary to recite, we believe that, pending the decision of the issues against him by the jury, it is the right of the appellant to bail. The legal principles controlling such a case have often been stated in the decisions of this court. See Ex parte Locklin (Tex. Or. App.) 72 S. W. 5S5; Ex parte Stephenson, 71 Tex. Or. R. 380, 160 S. W. 77; Ex parte Russell, 71 Tex. Or. R. 377, 160 S. W. 75; Ex parte Young, 87 Tex. Or. R. 412, 222 S. W. 242. .

The relator will be released pending his trial upon giving bail in the sum of ?S,000 in the terms and with sureties required by law and approved by the proper authority. 
      
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