The record having been perfected, the order of dismissal is set aside, and on the merits of the case, we have to say that the relator is held without bail upon a charge of murder, and brings the matter here for review.
The relator, a young man about twenty years of age, shot and killed Walter Tucker, an older man. Four shots were fired. The homicide took place in a small building, about twenty by forty feet, which was used as a grocery store. Several persons were present. Both the relator and the deceased had been in the building for some minutes, the deceased coming in after the relator had entered the store. It seems that a general conversation had been in progress for a few minutes. Some goods were brought into the store, and all the parties present except the relator and the deceased went to the rear of the building to examine the articles, the deceased and relator remaining near the fire and conversing with each other. The relator said. "Stick them up," at the time having his pistol in his hand. The deceased put his hands up, at the same time sliding off the counter, and the relator began shooting and continued to do so until the deceased fell.
There was inquiry made as to the position of the hands of the deceased at the time he was directed to "stick them up," but little is *Page 400 disclosed on the subject. There was only one eyewitness used by the State.
We are of the opinion that, on the record, the bail should not have been denied. The burden was upon the State to produce proof evident of the offense. To do this, within the meaning of the Constitution, we think it was necessary to prove express malice. Firman v. State, 60 Tex.Crim. Rep.; Ex parte Townsley,87 Tex. Crim. 252; Ex parte Young, 87 Tex.Crim. Rep..
The cause of the homicide is unexplained. The facts evidently are only partially developed, as several eyewitnesses were not called to describe the occurrence. There is some evidence of the previous difficulty, though at the immediate time of the shooting the parties were talking and their words were not heard by others. The attitude of the deceased is not fully described. The presumptions are not indulged against the relator. He may have been unjustifiable and still entitled to bail. Cordono v. State, 56 Tex.Crim. Rep.; Rice v. State, 51 Tex.Crim. Rep.; Farrer v. State, 42 Texas Reports, 271. The presumption of express malice is not against him. Hamby v. State, 36 Tex. Crim. 523; Dougherty v. State, 59 Tex.Crim. Rep.; Potts v. State, 56 Tex.Crim. Rep..
The relator, in our judgment, should be discharged on bail in the sum of $5,000, and it is so ordered.
Bail granted.