
    Ex parte GAITHER.
    (No. 10633.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1926.)
    Bail &wkey;49 — Refusal of bail held not error, in view of proof evident of a capital crime.
    Evidence held to sustain finding that there .was proof evident of a capital crime, so that refusal to admit to bail was not error.
    . Appeal from District Court, Ft, Bend County; M. S. Munson, Judge.
    Application by way of habeas corpus for release on bail by Forrest Gaither, Jr. Judgment denying bail, and he appeals.
    Affirmed.
    Nat Llewellyn, of Marlin, and C. I. McFar-lane, of Houston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the' State.
   MORROW, P. J.

Charged by indictment .with the murder of T. J. Wells, relator, by way of habeas corpus, sought release on bail. From the opinion of the district judge denying bail, the appeal is prosecuted.'

' We will make no detailed statement of the evidence. According to the state’s witnesses, the relator was sitting near a wagon when the deceased, Wells, and one Harold walked up and started a conversation with him and Admiral. The relator’s feet slipped off the wagon tongue, and in the fall he dropped his pistol. He appeared to be intoxicated, and indulged in abusive and threatening language towards the deceased, who walked away towards the guardhouse. A few moments later the deceased was killed by the relator. The body revealed one gunshot, entering the back near the shoulder blade and coming out in the breast. According to the state’s witnesses, the deceased was unarmed and made no threats, and that the time he walked away Until he was shot and killed was not sufficient for him to have gone to the guardhouse and armed himself. The justice of the peace and others, who were5 called to the scene soon after the tragedy took place, and one witness, who, according to his testimony, saw the relator and deceased near each other shortly before the shots were fired, declared that the deceased was unarmed; that a search about the scene of the difficulty failed to disclose the presence of any gun or arms save that possessed by the relator. One of the witnesses introduced by the relator gave evidence to the effect that the deceased went to the guardhouse and got a shotgun before he was killed. Another witness testified that, several hours after the homicide, a shotgun was found in the vicinity where the shooting took place.

Upon the record as presented, we do not feel warranted in overturning the conclusion reached by the trial judge that there was proof evident of a capital crime.

The judgment is affirmed.  