The appellant, Frank Randon, having been arrested by authority of a copias based upon an indictment charging him with the murder of one Theophilus Smith, sued out a writ of habeas corpus before the Hon. Wm. H. Burkhart, judge of the 18th Judicial District. On a hearing the judge refused to allow the applicant bail, and remanded him to the custody of the sheriff to await the further orders of the court. From this judgment an appeal has been prosecuted to this court. The reasons which operated on the mind of the court in refusing bail to the applicant accompany the transcript.
These reasons may be stated in substance as follows Where an applicant for bail is shown to be held in custody under a copias founded upon a valid indictment, he is not illegally restrained of his liberty, and to entitle him to bail it is incumbent upon him to show by proof that the charge upon which he is restrained is a bailable one. In other words, the applicant must show that, though held to answer a charge of a capital offense, the proof is not evident against him, in order to meet the request of the Bill of Rights which is as follows: “Allpersons shall he bailable by sufficient sureties unless for capital offenses when the proof is evident.” Constitution, art. 1, sec. 11.
Let it be supposed that by the return of the sheriff to the writ of habeas corpus it appears that the applicant is held by a proper charge, as for instance a capital indictment and copias, and when the time arrived for hearing *154the writ the applicant should not offer any testimony at all. The court, being informed as to the nature and cause of his arrest and detention, could not do otherwise than to- remand him to custody for the reason that prima facie at least he was being held for a non-bailable offense; and this is the substance of the decision of this court in Scoggin’s case, 6 Texas Ct. App. 546, cited by. the judge. As was said in Scoggin’s case, so in this: “He undertook to show that he had a constitutional right to be admitted to bail, in that the proof of his guilt was not evident. This could only be shown by exhibiting the proofs.” It was also held in Scoggin’s case, and we think correctly, that “if it appear by the return and the papers attached that he is indicted for a capital offense, it is incumbent upon him to show that he is entitled to bail.” It should, however, be borne in mind that the principal question determined on this branch of Scoggin’s case was as to whether the State or the applicant was entitled to the opening on the evidence.
But Scoggin’s case was not analogous to the one under consideration. In the present case it seems from the statement of facts that the applicant not only introduced evidence to establish his right to bail, but he did more: he had summoned 'and he examined all accessible witnesses whose names were indorsed upon the back of the indictment, and showed by them what their testimony would be; thus showing, so far as in his power, the whole evidence attainable for the State as well as for the applicant. There were two witnesses whose names were indorsed on the back of the indictment who were not examined on the habeas corpus. One of these could not be found by the officer, who went after him with a subpoena; the other was a female confined in child-bed. Their absence seems to have been satisfactorily accounted for, as there was no desire manifested to postpone or continue the examination on account of their absence.
*155In our opinion the question to be determined by the court is whether in such a case, upon the whole evidence adduced (when the evidence is gone into), is the guilt apparent ? Is it evident that he is guilty of a capital offense, i. e. murder in the first degree, and therefore not bailable ? And this question should be determined without reference to whether the evidence was introduced by the applicant or by the State, and without reference to the prima facie case which would in the absence of proof be made by the production of a capias and a valid indictment. The whole evidence must be sufficient to satisfy the court that the proof of the guilt of the accused is evident, or the applicant is entitled to bail.
In the present case we do not wish to make any comment upon the strength of the evidence, lest what we may say might be used in a manner not intended. We are constrained, however, to make this observation, that from the testimony embraced in the statement of facts sent up with the record, the proof to our mind is not evident; and we are of opinion, therefore, that' the learned judge before whom the habeas corpus was tried erred in refusing bail to the applicant, and that the judgment and order must be reversed. The applicant will be admitted to bail by appearing before the Hon. Wm. H. Burkhart, judge as aforesaid, with his sureties to be taken and approved, and the sufficiency of the sureties to be determined by said judge, in the sum of one thousand dollars. A certified copy of this opinion will be forwarded to the Hon. Judge Burkhart for his guidance at the earliest day practicable.
Ordered accordingly.