
    Ex parte PURVIS.
    (No. 8527.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1924.)
    1. Habeas corpus <&wkey;'l 07— Killing as result of insult’to woman relative not necessarily manslaughter requiring admission to bail.
    In habeas corpus to admit to bail the court cannot say as a matter of law that all killings which result because of alleged insult to a female relative are manslaughter only.
    2. Bail <&wkey;49—Express malice properly considered in determining right to bail.
    In determining whether defendant is entitled to bail, as a matter of right in a murder prosecution, the question of whether express malice is shown is a proper inquiry.
    3. Habeas corpus <&wkey;l 13(12)—Appellate court must determine question of bail from facts, before it.
    The appellate court must determine the question of bail from the facts before it.
    4. Habeas corpus <&wkey;85(l)—Evidence held to warrant a finding of murder warranting denial of bail.
    In habeas corpus to admit to bail evidence held to warrant a finding of murder as against the contention that the offense was manslaughter because of the improper conduct of decedent with defendant’s wife, where there was no testimony that defendant had ever been informed that such was true, by his wife or any one else, and his wife did not confirm the statement except inferentially in what she said to a neighbor.
    Appeal from District Court, Panola County; C. L. Baehfield, Judge. •
    Habeas corpus by Simon Purvis to secure admission to bail. From an order remanding him without bail, relator appeals.
    Affirmed.
    Long & Strong, of Carthage, for appellant.
    Woolwo-rtb. & Duran, of Carthage, B. W. Baker, of Midland, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant is charged with the killing of Dr. B. N. Oden. Prom an order of Hon. Charles L. Brachfield, Judge of the 4th Judicial District remanding him without bail, relator appeals.

Deceased was found dead in his yard. Pacts proven indicate that he had been shot while in the hall of his bouse from a point inside deceased’s room. No one was present except the party doing the killing. A ¡high-power rifle ball was found imbedded in the wall of the room across the hall from, that occupied by deceased, and was removed. The shot that killed deceased went through his body. The ball fits shells found in relator’s possession. His shoes were fitted in tracks found by the officers and corresponded exactly. If we correctly understand the significance of the tracks, they showed an approach to deceased’s house by an unusual course. Measurements were made of horse tracks which tallied with those of a horse belonging to relator. He explains his presence in the woods near deceased’s house by saying he was hunting hogs. When first questioned about the matter, he denied knowing Dr. Oden, but latter admitted that he owed him a bill for treating his wife, and explained an inquiry made by him as to deceased’s whereabouts by claiming that he was hunting him to advise deceased he could not pay the bill for which he says the doctor was dunning him every few days. Forshee was a neighbor of relator. On the day of the killing between 2 and S o’clock relator went to Forshee and inquired if he (Forshee) knew that Doctor Oden had doped relator's wife and had intercourse with her. He did not tell Forshee that his wife told him this was true, but insisted on the witness going to relator’s house and talking to his wife. Witness did this, and the only thing that Mrs. Purvis told him after being directed by relator to tell him about the matter was that Dr. Oden would come to her window, and she would go crazy and would not know anything after that. After this Forshee returned to his home, and relator went back again and wanted to borrow witness’s gun, asking “if it snapped,” and said he did not want to use his 30-30 rifle as everybody would know who did it. He told Forshee that he intended to kill Oden. Witness .declined to loan relator his gun. About 7 o’clock that night relator again went to the home of witness Forshee and requested him and his family to go over and stay awhile with relator’s family,'and said, “Everything up yonder is over.”

Upon thei habeas corpus hearing appellant offered no testimony. It will be seen from what has been stated heretofore that appellant was asserting to his neighbor that deceased had been guilty of improper conduct towards relator’s wife, but there is no testimony that he had ever been informed that such was true by his wife or any one else, and his wife did not confirm this statement except inferentially in what she said to her neighbor Forshee. The evidence is clear that relator not only made threats to take the life of deceased, but was planning with deliberation to execute the threat in such a way that suspicion would not be fastened upon him, agid for this reason was seeking to borrow his neighbor’s gun, not desiring to use his own high-power rifle for fear that circumstance might point suspicion at him. This court cannot say as a matter of law that all killings which result because of alleged insult to a female relative are manslaughter only. We had occasion to discuss this matter at some length in the recent case of Bowlin v. State, 93 Tex. Cr. R. 452, 248 S. W. 396.

In determining whether a party is entitled to bail as a matter of right, although the degrees of murder are now no longer recognized in this state, the question of whether express malice is shown is a proper inquiry in order that the court may determine whether bail should be permitted. In this connection we think the language of Judge Simkins in Ex parte Jones, 31 Tex. Cr. R. 422, 20 S. W. 983, is pertinent to the facts before us in the present case:

“The law makes no allowance for the passion of revenge. While it concedes something to the instinctive, unreasoning passion, that blindly strikes, it has no sympathy with the vindictive, calculating spirit, that deliberately premeditates and maliciously acts. There may be injuries which do not come within the purview of Penal Code, arts. 597, 598, yet are so grave that the mind, however long the interval, would not ordinarily dwell calmly and deliberately upon them, and a homicide committed in consequence thereof may not be greater than murder in the second degree. Yet, even in such cases, if the evidence renders it certain that the mind of defendant was in fact calm and deliberate when the design to kill was formed, or that, when it was executed, it was done in pursuance of a formed design, as manifested by the threats to take life, by the purchase and exhibítion of weapons procured for that purpose, said purpose to be consummated whenever the parties should meet, and at the time of the hilling there was no excitement other than that naturally attending such an act, but the same is committed calmly and coolly, or covertly, it is murder upon express malice.”

The case is imperfectly developed as frequently occurs upon habeas corpus hearings, but it is necessary for us to determine the question of bail from the facts before us, and from them we believe the learned trial judge was not in error in his order relative to the matter, and the judgment is therefore affirmed. 
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