I do not agree to the granting of bail in this cause. The testimony shows a killing of relator's divorced wife, and the only reason that could be given therefor was that she was found by relator in the act of kissing Mr. White, whereupon relator shot Mr. White three times and then shot his ex-wife three times, killing both of them. The woman was shot in the right eyebrow, shot in the back at the left shoulder blade, and shot in the abdomen about one inch from the naval. Mr. White was shot in the head, in the upper part of the left forehead, in the back at the shoulder, and shot in the right chest at the lower part of the ribs.
In the relator's testimony herein he says that while White and his ex-wife were kissing each other in Mr. White's studio, she saw the relator approaching and pointed her finger at him; that White lunged at him and relator went to shooting; that his wife got in the way and he fired six or seven shots from his pistol which he had recently purchased. Nowhere does he say that he accidentally shot his wife three times.
I recognize the fact that he might plead and a careful trial court would probably charge the jury on self-defense, as well as murder without malice in the slaying of White, but surely he could not plead either matter in the case of the woman. *Page 461
The Constitution of Texas says in Section 11 of Article I that "all prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident." This phrase has been carried into our statutes with the substitution of the word "where" for the word "when". See Art. 5, C. C. P. Again, the phrase "capital offenses" has been defined in Art. 47, P. C., as follows:
"An offense is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed by this Code. An offense which may — not must — be punishable by death or by confinement in the penitentiary is a felony; every other offense is a misdemeanor. Felonies are either capital or not capital. An offense for which the highest penalty is death is a capital felony. Offenses are divided into felonies and misdemeanors."
As is shown by Judge Hawkins in his opinion herein, the phrase "when the proof is evident" has been construed by this court many times to mean that upon a trial a cool and dispassionate jury would probable inflict a death penalty, thus causing this court to guess or speculate on what a jury would do, a matter fraught with many difficulties and contradictions, as has been often shown by variant verdicts in many cases with practically the same proof brought before this court. While I express dissatisfaction with this court-made law, I recognize its antiquity as well as its utility, and do not say that this court should return to the rule that would paraphrase "when the proof is evident" into the meaning of such proof as that this court would uphold a verdict of death. I am not dissenting from a holding of the time-worn precedent, but I do dissent from the allowance of any bond for the killing of this woman. The record shows her to have married relator at the age of seventeen years; it shows her to have been a wayward young woman; three times had she been untrue to him, so relator says, and each time he had forgiven her and resumed relations with her. She had borne him two children and they had agreed to their custody in the event of a divorce. He had signed a waiver to her divorce proceedings and the divorce had been granted, although he claimed not to have known that such had been granted. He had seen both her and White before on the day of the killing, and she had refused to come back to him or to be seen out with him. She did nothing at the time of her death save to point her finger at him, and he shot her three times and left both bodies lying on the floor. *Page 462
I confess that no one, unless he can see into the future, can tell what a jury will do under these circumstances. I can only say that it is my opinion that bail was properly refused in this case by the trial court.
For the killing of Mr. White, there is probably some extenuating circumstances, but for the killing of this unarmed woman there are none, and the penalty therefor may — not must — be death.
I therefore dissent in this cause.