Ex Parte Russell

• Decision Date: 14 October 1913
• Citation: 160 S.W. 75
• Parties: Ex parte RUSSELL.
• Court: Texas Court of Criminal Appeals

160 S.W. 75

Ex parte RUSSELL.

Court of Criminal Appeals of Texas.

October 14, 1913.

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 the opinion that relator is entitled to bail. 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 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 must 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 "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.

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...