This is an appeal from an order refusing appellant bail, after indictment for murder.
Both the state and the applicant developed the facts more fully than is usually done in application-for-bail cases,
*426On the day prior to the killing, the deceased, a mature man Who had a reputation for mistreating his own wife and also other persons, slapped his sister-in-law, the ninety-five pound pregnant wife of appellant, during the course of an argument. There was some evidence that such assault was unjustified.
Appellant was in Chicago at the time. His wife called him and told him of the assault and of deceased’s conduct toward her. Appellant left Chicago, traveling by automobile to his home. Upon arrival, being unable to find a friend to accompany him to see the deceased, appellant, with his wife, went to the home of the deceased, who was at that time sitting on the porch.
Appellant stated to deceased that he had not come to kill him but was going to whip him because of his conduct toward his wife. He told the deceased to throw down the knife he carried and fight. Instead of doing so, deceased started to go in the house, where he kept his gun. It was then that appellant shot and killed him.
The killing occurred at the first meeting of the appellant and the deceased after appellant’s wife had communicated to him the assault1 and conduct of the deceased.
That such facts reasonably and fairly raised the issue of a killing ¡without malice' can hardly be denied. Indeed, upon a trial of the case under such facts it would be the duty of the trial court to submit to the jury such issues and to instruct the jury that if the killing was without malice and they so believed or had a reasonable doubt thereof the .highest punishment that could be assessed against- the appellant would be five years in the penitentiary.
In Ex parte Craig, 76 Texas Cr. Rep. 360, 174 S.W. 823, this court held that where evidence raised the issue of negligent homicide, the case was bailable. To the same effect, this court held in Ex parte Glenny, 100 Texas Cr. Rep. 134, 272 S.W. 458, that where the evidence showed that the homicide was justified or mitigated it was a bailable case. In Ex parte Rivera, 105 Texas Cr. Rep. 37, 285 S.W. 327, and in Ex parte Adams, 119 Texas Cr. Rep. 135, 44 S.W. 2d 713, this court held that'where the evidence reasonably well supported self-defense ’ the case was bailable.
Here, the evidence, reasonably and fairly raising a defense *427that would if accepted or believed by the jury preclude the infliction of the death penalty, makes this a bailable case.
Accordingly, the judgment of the trial court denying bail is reversed, and bail is now granted in the sum.of $15,000.
Because this term of court concludes three days from this date, it is ordered that no motion for rehearing by either party will be permitted.
Mandate will issue immediately.