Relator sued out a writ of habeas corpus before District Judge Frank Williford, Jr., requesting that bail be allowed him under an indictment for robbery with firearms returned against him by a grand jury of Harris County. Upon a hearing thereof, relator was denied bail and he appeals to this court.
The facts here presented show a well-planned robbery in broad daylight of Mr. Hardee, a merchant, who had with him in his truck $7,500.00 recently drawn from a bank, the pursuit of Mr. Hardee, the holdup effected by the presenting of two pistols, the binding and taping of Mr. Hardee, and leaving him in a wooded spot on the Conroe Road. Hardee testified as to threats and being put in fear of his life. Upon the capture of appellant and his companions in but a few minutes after the completion of the robbery, Hardee identified the relator and his companions, also his money, watch, billfold and ring which were found on them, as well as their two pistols.
It seems to be the relator's contention that since no one was killed in this holdup, the proof is not evident that a dispassionate jury would probably inflict the penalty of death in the event of a conviction. We are cited to many cases laying down the above doctrine relative to what is meant by "when the proof is evident." *Page 515
In his request for bail, we are particularly cited to the case of Ex parte Vermillion, 102 Tex.Crim. R., 280 S.W. 771, wherein it is shown that the Presiding Judge of this Court at that time said:
"Having respect to the precedents, we do not feel warranted in upholding the judgment denying bail. We are aware of no case of robbery, unattended with personal injury in which a jury in this state has rendered a verdict calling for the infliction of capital punishment."
Such a statement has lost its efficacy and finds itself outmoded in the case of Allen v. State, 114 Tex.Crim. R.,21 S.W.2d 527, wherein Allen received a death penalty for the robbery of a bank during which no shots were fired and no one was injured. The mere fact of no violence having been perpetrated save the use of the firearm to frighten and no shots being fired, cannot be used as a criterion in deciding an admission to bail as a lack of proof evident. The dicta quoted above from the Vermillion case is recognized as such by the judge writing that opinion in the later case of Ex parte Collins, 118 Tex.Crim. R., 38 S.W.2d 789, referring to the case of Allen v. State, supra.
We think the testimony in the present instance shows a deliberate and planned robbery by the use of firearms and the putting in fear of his life of Mr. Hardee, the positive identification of relator, and no testimony in any way tending to reduce, excuse, or mitigate the offense. The Legislature has fixed the penalty, the amount thereof being a matter within conscience of the jury. A penalty of death could be inflicted, and we do not feel that it is our duty to say that such would not be deserved under the testimony here presented.
The judgment will be affirmed.