the shoulder, breaking defendant's shoulder |2. BAIL (§ 43*)—BAILABLE OFFENSES-CAPIand collar bone. Defendant's arm dropped TAL OFFENSE. to his side. Defendant run from Pittcock, abolishing the degrees of murder and providing Under the recent act of the Legislature but Pittcock pursued him and struck him that murder shall be punished by death or im(defendant) over the head with the board or prisonment for life or for any term of years not plank." On cross-examination this witness less than five, all murder cases are not made nonsaid that neither Pittcock nor defendant providing that all prisoners shall be bailable by bailable or capital within Const. art. 1, § 11, cursed any, and what he had stated was sufficient sureties unless for capital offenses about all that was said by either of the par- when the proof is evident, and bail should be ties. "Neither of them seemed to be mad un-proof is evident that, if the law is properly adgranted a person charged with murder unless the til Pittcock rushed on defendant with the ministered, the conviction will be of a capital ofboard or plank. They did not talk loud but fense. in an ordinary tone of voice. All the defendant said to Luther Pittcock was, 'If you say that I did not pay your brother for the feed he let me have, you are a liar.' Pittcock is still living down there where he was last fall. He is not here as a witness in this case." This is the state's case. [Ed. Note.-For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.*] 3. BAIL (§ 43*)-BAILABLE OFFENSES-CAPITAL OFFENSE. A penitentiary convict, while being taken on the train to a state farm, jumped through the car window and attempted to escape, whereupon the transfer agent, who was assisting in taking the prisoners to the farm in the performance of his duty, shot and killed such convict. No ill will between the agent and the convict appeared, and the killing apparently occurred only by that bail should be granted unless the proof is reason of the escape. Held that, under the rule ed, the conviction will be of a capital offense, the agent, who was charged with murder, was entitled to bail, especially in view of Pen. Code 1911, art. 1094, § 10, providing that a person imprisoned in the penitentiary or attempting to escape therefrom may be killed by the officer having legal custody of him if his escape can in no other manner be prevented. The contention of appellant is that the language used (that is, "If you say that I did not pay your brother for the feed he let me have, you are a liar') does not make out a case under our law of using abusive lan-evident that, if the law is properly administerguage, and he should have been acquitted. This matter is presented not only as to the sufficiency of the evidence but the refusal of the court to charge the jury to acquit under the particular state of facts, This case would seem to come within the rule laid down in Johnson v. State, 66 S. W. 1097, 1098. Under the rule laid down in that case it seems the judgment will have to be affirmed. Under the authority of Watkins v. State, 44 S. W. 507, and Christmas v. State, 44 S. W. 175, abusive language towards the defendant will not justify him in using abusive language, but such language could be considered in mitigation of the penalty in case defendant should be found guilty. So it would seem under these authorities this judgment should be affirmed, and it is accordingly so ordered. Ex parte RUSSELL. [Ed. Note.-For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.*] Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. Application by Bud Russell for a writ of habeas corpus for the purpose of obtaining bail. From a judgment denying bail, he appeals. Reversed, and bail granted. Kahn, Williams & King, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. DAVIDSON, J. Relator having been charged with murder, resorted to a writ of habeas corpus for the purpose of obtaining bail. Upon a hearing under the writ, the district court remanded him without bond. After reviewing the case, the court is of (Court of Criminal Appeals of Texas. Oct. 14, the opinion that relator is entitled to bail. 1913.) 1. BAIL (§ 43*)—BAILABLE OFFENSES "CAPITAL OFFENSE"-"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, parties charged with an offense that may be punished capitally are entitled to bail unless the evidence leads a well-guarded and dispassionate judgment to the conclusion that an offense has been committed, that the accused is the guilty agent, and that he will be punished capitally if the law is properly administered; a "capital offense" being one punishable by death, and "evident" meaning plain, clear, and obvious. [Ed. Note.-For other cases, see Bail, Cent. Dig. § 153-164; Dec. Dig. § 43.* For other definitions, see Words and Phrases, vol. 1, p. 958; vol. 3, pp. 2525, 2526.] Therefore the judgment is reversed, and the sheriff of Harris county is ordered to take bail in the sum of $5,000 conditioned as the law requires. Upon the execution of this bond the relator will be discharged from custody. There are some law questions involved in the case that are not here discussed. In an opinion to be filed later they will be taken up and reviewed, and that opinion filed with the record. The judgment is reversed, and bail granted in the sum of $5,000. Additional Opinion. Bail was granted relator in the sum of $5,000. The reasons for the decision were not stated at the time. We now proceed to state some of the legal reasons for the ruling of the court with reference to the recent change in our murder statute. the Legislature had intended to make all murder nonbailable or capital, they would have used appropriate language and fixed the punishment of death, but such is not the statute. The rule laid down by the Legislature would show and indicate that it was not the purpose of it to cause a conflict between the act of the Legislature and the provisions of the Bill of Rights. The Legislature intended, as did the makers of the Constitution, to deny bail only when the proof is evident of a capital offense, or that the party would be ed and well known to our jurisprudence. The circumstances attending each killing must be the guiding rule as to whether the offense is capital or not and of course whether bailable or not. [1] The Constitution, art. 1, § 11, reads as follows: "All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident," etc. The general proposition enunciated in the Bill of Rights, therefore, is that all prisoners shall be bailable with the exception stated, that unless for capital offenses when the proof is evident. In order to make the case nonbailable under this clause of our Constitution, the proof punished with death under the rules prescribmust be evident that there has been committed a capital offense. Construing this, it has been held that all parties are entitled to bail when charged with an offense that may be punished capitally, unless the evidence is strong and clear and would lead a well-guarded and dispassionate judgment to the conclusion that an offense has been committed, and that the accused is the guilty agent and would be punished capitally if the law is properly administered. Of course a capital offense is one which may be punished by death. There can be no capital offense unless the punishment is by death. The word ministered, the conviction would be of a "evident" means plain, clear, and obvious. Ex parte Boyett, 19 Tex. App. 45. The cases laying down the above proposition may be found collated in Mr. Branch's Criminal Law, §§ 93, 96. [2] Prior to the recent act of the Legislature, murder was divided into two degrees. The first degree was predicated upon express malice, lying in wait, poisoning, etc. The second degree was constituted by the absence of express malice or those circumstances which constituted murder in the first degree on one side and such matters as would reduce the homicide by reason of extenuating circumstances or mitigation to manslaughter or negligent homicide or excused or justified the act of killing. The punishment for murder in the first degree under the old law was death or life imprisonment in the penitentiary; for murder in the second degree any term of years in the penitentiary not less than five. The new or amended statute abolishes the two degrees of murder and provides the punishment for murder shall be death, life imprisonment, or any term of years in the penitentiary not less than five. This definition of murder with its prescribed punishment does not and cannot affect the constitutional rule authorizing bail in all cases except capital offenses where the proof is evident. The same punishment is prescribed in cases of rape or robbery by firearms. But in all such cases the proof, in order to deny bail, must be evident that the offense is capital. It does not follow that, because the definition and punishment for murder has been changed, therefore all murder cases are nonbailable. This is borne out by the very terms of the statute itself, because such punishment is graduated from five years in It is not the purpose of this opinion to go into a long treatise or discussion of these matters but simply to reiterate the law, as it has been declared not only by the Constitution but understood thoroughly in the jurisprudence of the state, that in order to refuse bail the proof must be evident of a capital offense; that is, if the law is properly ad capital offense. There has been a great number of cases of murder that are not capital. While the Legislature abolished the distinction between the two degrees of murder, it was not the purpose of that act, as evidenced by its terms, to make all cases nonbailable. There was simply a general definition given of murder, prescribing the punishment from minimum to maximum, as in the case of robbery by firearms or rape. That robbery and rape cases are nonbailable simply by reason of the fact the parties may be punished capitally would depend upon the circumstances attending the case as to the proper conclusion of the enormity of guilt. [3] Applying the rules to the case in hand, stating just enough of the facts to show the environments of the case, the record discloses that appellant was the transfer agent of penitentiary convicts. That in obedience to his duty he was assisting two other officers in carrying a lot of prisoners from Huntsville through Houston to what is known as the Sugar Land or Imperial State Farm. While at Houston the prisoners were transferred from one train to another and were securely locked in pairs. The deceased, one of the prisoners, managed in some way to unlock the chain around his neck and, jumping through the car window, sought to escape. After the deceased escaped from the car he was shot and killed by relator. It is unnecessary to go into a detail of the circumstances further than stated. They will become matters for investigation, should relator be tried before a jury. Our statute provides (article 1094, § 10) that "a person under sentence of death or imprisonment in the penitentiary, or attempting to escape from the penitentiary, may be killed by the officer having legal cus ner be prevented." The deceased was a penitentiary convict and attempting to escape and was killed by the relator who had him in legal custody. Now, relator would be justified or excused under the statute unless deceased's escape could in some other manner be prevented. From the evidence there was no ill will shown between relator and the deceased, and, as we gather from the facts, the killing occurred only by reason of the escape. This much of the evidence has been stated in order to justify the conclusion of this court that the case is bailable under the rules of law as applied to this record. The trial court was therefore not justified in refusing bail. Ex parte STEPHENSON. hearing the district judge denied bail, from which appellant prosecuted this appeal. The statement of facts is quite lengthy. It is the rule of this court not to discuss the facts in habeas corpus bail cases. Before said act of 1913 the offense of murder was in two degrees, first and second. The punishment for the first degree was by death or confinement in the penitentiary for life; for the second degree, it was confinement in the penitentiary for any term not less than five years. By said act of 1913 the degrees of murder were abolished, and the punishment, as prescribed by that act, is death or confinement in the penitentiary for life or for any term of years not less than five. In 1876, by and when our present Constitution became effective, murder of the first degree was punishable by death only. Mc (Court of Criminal Appeals of Texas. Oct. 14, Inturf v. State, 20 Tex. App. 335. Since then 1913.) 1. BAIL (§ 43*)—BAILABLE Offenses-DeaTH Mr. the penalty was so changed as to make it punishable by death or imprisonment for life as stated above. Section 11, art. 1, of our Constitution is: "All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found, upon examination of the evidence in such manner as may be prescribed by law." This is also enacted as a part of C. C. P., art. 6. The fact that by and at the time this constitutional provision was adopted, murder in the first degree was punishable only by death should be taken into consideration. Harris, in his Texas Constitution, under this article (page 107), we think, lays down this correct proposition from the authorities: (3) Proof is evident,' if the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that On an application for bail by a person the accused is the guilty agent, and that he charged with murder, the trial judge has a reasonable discretion in determining whether the would probably be punished capitally if the death penalty probably will or should be impos-law is administered, and in such case bail ed, and on appeal the presumption will be in- is not a matter of right. Ex parte Smith, dulged that his judgment is correct. 23 Tex. App. 100, 5 S. W. 99; Ex parte BeaDig.com, 12 Tex. App. 318; Ex parte Coldiron, 15 Tex. App. 464; Ex parte Evers, 29 Tex. App. 539, 16 S. W. 343." [Ed. Note.-For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.*] 2. CRIMINAL LAW (§ 1148*)-APPEAL-DISCRETION OF COURT-ADMISSION TO BAIL. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3050-3052; Dec. 1148.*] Appeal from District Court, Hardin County; L. B. Hightower, Judge. Habeas corpus proceeding by W. C. Stephenson to obtain his release on bail. From a judgment denying bail, petitioner appeals. Reversed, and bail granted. T. B. Ridgell, of Rockwall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. 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. The denial of bail in any case and the confinement of the accused in jail to await trial is not, and is not intended as, any punishment of the accused for his crime; but the reason for refusing bail and so confining him is to be certain that he shall be present at the court and stand his trial. If upon a consideration of all the evidence, it is reasonably PRENDERGAST, P. J. [1] Appellant was held under an accusation for murder alleged to have been committed August 19, 1913, after the act of the Legislature approved April 3, 1913 (page 238), abolishing the degrees of murder, and changing the penalty therefor, was in effect. On a habeas corpus probable to the well-guarded and dispassion- | designated, and upon appeal this court must ate judgment of the judge or court that a indulge the presumption that his judgment jury in the proper enforcement of the law is correct. will inflict the death penalty, then the theory of the law is that life is so dear to the accused no amount of bail will secure his attendance at the trial, hence bail should be denied him. The judicial history of our state and the long experience of the judges and courts demonstrate that in the trial of cases, where the death penalty can be inflicted, the juries do not, and probably should not, inflict the death penalty in the great majority of such cases. Our statute (article 329, C. C. P. subds. 2, 3), in prescribing rules when bail is granted, is: "2. The power to require bail is not to be used in such manner as to make it an instrument of oppression. 3. The nature of the offense and the circumstances under which it was committed are to be considered." In addition to treason, our statutes authorize several offenses to be punished capitally, such as murder in the first degree heretofore, now in any case; murder in certain cases of arson, perjury when committed in a capital case under certain circumstances, rape, and robbery with firearms. The punishment for rape is death or confinement for life, or for any term of years not less than five. For robbery with firearms it is death or confinement in the penitentiary for any term not less than five years. It is unnecessary to state the penalties for the other capital offenses, as these are stated merely for illustration. It was never the policy of the law, nor the legislative intent, that bail should, as a matter of law, be denied in all cases for rape, or robbery with firearms, or any other of the capital offenses, simply because the death penalty was authorized to be inflicted. As stated by the statute above quoted, the nature of the offense and the circumstances under which it was committed are to be considered, and the power to require bail (or deny it) is not to be used in such manner as to make it an instrument of oppression. It is certainly true that there have been and will always be cases for any of the capital offenses, where, notwithstanding the jury is given the power to inflict the death penalty, they will not do so, and should not do so. [2] The question to be determined in this case is whether, under the nature of the offense charged, and the circumstances under which it was committed, upon a consideration of all the evidence, the court, in a wellguarded and dispassionate judgment, should reach the conclusion that the death penalty, if the law is properly enforced, will be imposed. If so, bail should be denied. If not, then bail should be granted. Of course, there must necessarily be lodged with the trial judge the exercise of a reasonable discretion, based on the character of judgment above In this case, after a thorough consideration of the evidence, we have reached the conclusion that in all probability the jury will not, and probably should not, inflict the death penalty, hence bail should have been granted. We do not mean to intimate that the discretion given to the jury to assess capital punishment should not be imposed in this case. That matter is left to them, guided properly by the trial judge, and properly guarded by him on a motion for new trial, if the death penalty should be imposed. For a further discussion of this question see Ex parte Russell, from Harris county, this day decided, and to be discussed in a supplemental opinion. The judgment of the lower court in denying bail is therefore reversed, and the appellant is hereby granted bail in the sum of $5,000. Upon the execution of proper bond, in accordance with law, the sheriff, having him in custody, is directed to discharge him. COBB V. STATE. (Court of Criminal Appeals of Texas. Oct. 15, 1913.) CRIMINAL LAW (§ 1119*)-APPEAL-REVERSAL. A conviction would not be reversed, because accused was unrepresented by counsel at the trial, preventing him, as claimed, from fairly presenting his defense, where it did not appear that he was prevented from securing counsel by the court or by outside influences, and the character of his defense was not shown by a statement of facts or otherwise. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. § 1119.*] Appeal from Bowie County Court; Lee Tidwell, Judge. B. J. Cobb was convicted of violating the pistol law and he appeals. Affirmed. C. E. Lane, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was fined $100 for violation of the pistol law. The record contains neither a statement of facts nor bills of exceptions. The only ground of the motion for new trial is the allegation that appellant was unable to obtain counsel to represent him on the trial of his case, and was tried without the benefit of counsel. He alleges he is not a lawyer, and was so embarrassed and excited in the trial of the cause that he was not able to have his defense fairly presented to the court; that this excitement was so great that while he was on the witness stand he was unable to relate the facts constituting his defense with that degree of clearness necessary to a proper understanding of same by the court; and that the judgment of the court is not supported by the law and evidence. His defensive matter, whatever it may culty between Bass and appellant's partner, have been, is not in the record either by a man named Renfro. Bass obtained an axe, statement of facts or made to appear in and Renfro went to appellant and got a pisany way with the motion for new trial, ex- tol from him, with which he fired several cept the statement above made. Why he shots at Bass; one or more of them striking was not able to obtain counsel, he does not him. allege or undertake to show. There is noth- The state's contention is that, when the ing to show that he was prevented from ob- trouble came up between Bass and Renfro, taining counsel otherwise than by a failure | Renfro got the pistol from appellant's jumper, on his part to do so. There is no allegation or and used it. The defendant's testimony on charge that he was prevented from secur- this particular phase of the case is that he ing counsel by outside influences or by the did not have the pistol on his person, but court. What was his defense, or what was that it was in a sack which he was carrying. the evidence for the state, is not stated; He also testified that Renfro had carried therefore we are unable to intelligently re- this pistol in his, Renfro's, sack from his view the question as presented. tent, because he was afraid it would be The judgment is affirmed. stolen, as they had missed several things from their tent during their absence when at work; that, when moving from one allotment of land over to the other at Renfro's request he carried this particular sack which con HARE v. STATE. (Court of Criminal Appeals of Texas. Oct. 15, tained the pistol, and Renfro carried one A person employed by a company to cutting of timber on these particular allotments timber could lawfully carry a pistol in going was his place of business, under any view of from his and his partner's camp to the timber allotted to them for cutting, and from such al- the law he had a right to have a pistol at lotment, when they finished cutting there, to an- his place of business, and that, had he carother allotment; this being his "place of busi- ried the pistol from his camp to the place ness" within the statute. where he was seen with it, it would not be a violation of the law. This is presented from the state's viewpoint of the evidence. Appellant further contends he did not carry the pistol, and did not own the pistol, and that it was an accidental matter; that he had it in his possession by reason of the fact he was carrying Renfro's sack. We are of [Ed. Note. For other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. § 11.*] Appeal from Liberty County Court; I. B. Simmons, Judge. H. Hare was convicted of carrying a pistol in violation of law, and he appeals. versed and remanded. Re H. S. Lilley, of Dayton, for appellant. C. E. opinion that under no view of this testimony Lane, Asst. Atty. Gen., for the State. ought appellant to have been convicted. If it was his pistol, and not Renfro's, he had a right to carry it from his tent to the place he was at work, and he had a right to carry it from one allotment of land he had finished cutting timber on to another allotment, with other matters that he was carrying. There is no evidence that he ever carried a pistol before, and the evidence does not show that the pistol belonged to him, but that it belonged to Renfro. His testimony on this phase of the case seems not to have been controverted. The state relied upon the fact that, when the difficulty came up between Renfro and Bass, Renfro went to appellant, and got the pistol from him, and that this constituted appellant a violator of the law. As before stated, if appellant was going from one place of business to another to begin work at a new place of allotment, he had a right to carry the pistol to that place. That was his place of business, and he had a right to have the pistol on the land. Under any view of this case we do not believe the state has made out a case which entitles it to a verdict. DAVIDSON, J. This conviction was for carrying a pistol in violation of the law. The evidence shows substantially that appellant was working for a company, and employed to cut timber; that they had certain allotments of land definitely marked on which the different hands were to cut this timber, and the hands worked in pairs or partners. A certain amount of this timbered land was marked out and defined, and these partners cut the timber together, and no other hands were permitted to cut timber on that allotment. Appellant's camp, or the camp of himself and partner, was something like two miles from where they were cutting timber. They had gone over to their place of work, and, as we gather from the record, appellant and his partner were going from one allotment of land, on which they had finished cutting timber, to another, which had been awarded them by the man in charge of the company's work. While going down what they called the right of way in the direction of his new allotment of land, a witness in the case named Bass accosted appellant's partner, who was with him, which resulted in a diffi- remanded. The judgment is reversed, and the cause is |