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Ex Parte Elsmore

Court of Criminal Appeals of Texas
Dec 22, 1937
111 S.W.2d 713 (Tex. Crim. App. 1937)

Opinion

No. 19566.

Delivered December 22, 1937.

1. — Bail — Rule Stated.

Bail is a matter of right unless the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered.

2. — Murder — Bail.

In murder prosecution, accused, who had been convicted and punishment assessed at confinement in penitentiary for 25 years, judgment reversed on appeal, and on second trial jury failed to agree and mistrial declared, held entitled to bail, where, in proceeding to be admitted to bail, testimony did not make evident the fact that a fair jury upon a trial considering such testimony would likely inflict the death penalty.

Appeal from the District Court of Sutton County. Hon. Joe G. Montague, Judge.

Appeal from a judgment denying relator bail.

Judgment reversed and bail granted.

The opinion states the case.

W. A. Wright, of San Angelo, for appellant.

Lloyd W. Davidson, State's Attorney, of Austin, for the State.


Relator is charged by indictment with the offense of murder. He was heretofore convicted and his punishment assessed at confinement in the penitentiary for 25 years. On appeal to this court the judgment was reversed for the reason that the trial court failed to charge on murder without malice. See Elsmore v. State, 104 S.W.2d 493. Upon a second trial the jury failed to agree, and a mistrial was declared. Thereafter, after a hearing under a writ of habeas corpus, relator was denied bail. Hence this appeal.

Bail is a matter of right unless the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered. Ex parte Powell, 298 S.W. 575. We are of opinion that the testimony before us does not make evident the fact that upon a trial a fair jury, considering such testimony, would likely inflict the death penalty. Under the circumstances, we are constrained to hold that the trial judge committed error in denying bail.

The judgment denying bail is reversed, and bail granted in the sum of $7,500.

Judgment denying bail reversed and bail granted.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


Summaries of

Ex Parte Elsmore

Court of Criminal Appeals of Texas
Dec 22, 1937
111 S.W.2d 713 (Tex. Crim. App. 1937)
Case details for

Ex Parte Elsmore

Case Details

Full title:EX PARTE THOMAS JOHN ELSMORE

Court:Court of Criminal Appeals of Texas

Date published: Dec 22, 1937

Citations

111 S.W.2d 713 (Tex. Crim. App. 1937)
111 S.W.2d 713