On a previous day of this term the judgment herein was reversed and bail granted in the sum of $4,000 for reasons stated in the original opinion.
1. It is contended by the State, in an amended motion for rehearing, that this court erred in not dismissing the appeal for the reason that the record does not disclose that a motion for new trial was filed and presented to the court below. The failure of the accused to file a motion for new trial in the trial court is not cause for dismissal of the appeal in this court. That does not constitute a jurisdictional question. The appellant has the right to have his case considered whether he files a motion for new trial or not. White's Annotated Code of Criminal Procedure, article 824; Cotton v. State, 29 Tex. 186. We deem it unnecessary to go into a discussion of this question.
2. It is contended also that inasmuch as the petition for the habeas corpus is general, that this court is unauthorized to render the judgment that it did render, and that the petition does not suggest definitely what relief the applicant sought. The statute provides that the application must allege the party applying for the writ is illegally restrained of his liberty, setting out the party who illegally restrains him of his liberty. This is served upon the party who detains the applicant. Service upon that party of the writ requires him to answer and show cause why he holds the applicant. When this has been done the trial is had. The character of practice shown in this case has been the universal practice in such cases, and *Page 375 is in accord with our statutes. In this particular case the sheriff answered that he held the applicant by virtue of a warrant showing his arrest under an indictment charging murder. The trial court, under this showing, was and is required to investigate the case. The burden of proof being, in this character of proceeding, upon the State, the prosecution contented itself by introducing the indictment, warrant of arrest and sheriff's return, and closed the evidence for the State. Applicant declined to introduce any evidence. The State was satisfied, as the applicant also seems to have been. Upon this state of record the trial court refused bail. It, therefore, becomes the duty of this court on appeal to render such judgment as that court should have rendered upon the transcript or record sent to us. This we understand to be the clear wording of the statute. Article 920, Code of Criminal Procedure, supra.
3. We do not propose to further review the question as to the burden of proof, or the amount of evidence necessary to refuse bail. The Constitution requires that in order to refuse bail the proof must be evident that a capital crime has been committed. The amount of this evidence, and its weight and cogency, has been the subject of many decisions. None of these, however, have ever undertaken to evade the constitutional demand that the proof must be evident. Much difference of opinion has existed as to the rule by which the necessary quantum of proof is to be reached or weighed, and the force and effect to be given it. Many rules of construction have been also resorted to by the different courts, but any rule of construction in regard to this question must be subordinated to the plain and emphatic language of the Constitution, and this requires that the proof must be evident. As stated in the former opinion, there was no evidence introduced in this case as to the homicide or its attendant circumstances. The State contented itself by simply introducing the indictment, warrant of arrest and the sheriff's return. This does not constitute proof evident that a capital crime had been committed. The indictment is not evidence of crime. The presumption of innocence obtains where parties are charged with crime. If the introduction of the indictment constituted a prima facie case of guilt, then it would seem that the State would be justified before the jury in making out a prima facie case of murder in the first degree by simply introducing the indictment and resting its case, requiring thereby that the accused party should introduce evidence to disprove the finding of the grand jury. This under no authority would be correct.
As Judge McCord has ably discussed the main question in the case as urged by the State, I deem it wholly unnecessary to add anything on that subject.
The motion for rehearing is overruled.
Overruled. *Page 376