This is a companion case to Number 7830, Ex parte Tom Ross, and upon authority of the opinion in that case the judgment denying relator bail is affirmed.
Affirmed.
ON REHEARING. May 22, 1923.
The appellant herein was denied bail on habeas corpus hearing before Honorable Clark M. Mullican, District Judge of Gaines County, Texas, and appealed to this court which, at a recent day of this term, affirmed the order and judgment of the lower court. Appellant was not satisfied and asks for a rehearing, and the matter has been again considered by us.
The rule seems to be that on appeal in habeas corpus hearing wherein bail was denied, if the complaint be that the evidence below was conflicting, this court will rarely overturn the judgment of the lower court and grant bail. Drury v. State,25 Tex. 45; Ex parte Rothschild, 2 Texas Crim. App. 560; Ex parte Beacom, 12 Texas Crim. App. 318; Ex parte Sparks, 81 Tex. Crim. 618; Ex part Lebo, 88 Tex.Crim. Rep., 227 S.W. Rep., 187. An inspection of the record reveals the fact that upon the hearing in the court below the State introduced a number of eyewitnesses to the killing who denied that either one of the men who were killed, by any act or movement of theirs evidenced an intent to execute threats theretofore made, as testified to by each of the appellants. Both Ross and Good took the witness stand and swore that threats against them on the part of each of the parties killed, had been communicated to them and that when they walked into the room where the killing occurred the deceased made movements indicating apparently a present purpose to excute such threats. The accused testified that there were witnesses present by whom they could prove the fact that deceased had made threats. No such witnesses were called to give evidence. No persons other than the accused testified to any movements on the part of either of the persons killed which might form a predicate for a belief on the part of appellants that an attempt was being made or about to be made to execute threats. This then appears to be a case
in which the State witnesses make out a case apparently capital, and the only conflict which appears is based on the testimony of the accused. In such case we do not believe ourselves justified in disturbing the judgment of the trial court.
The motion for rehearing will be overruled.
Overruled.