Dissenting Opinion of Hurt, J,
Hurt, Judge.The appellant, the relator below, made application for bail to the district judge of Travis county. The writ of habeas corpus was issued, and was answered by the production of appellant in court, the sheriff answering for cause of detention, that he held him by virtue of a capias issued upon an indictment charging him with the offense of murder in the first degree.
Upon the hearing under the writ, the State introduced the indictment, capias and the sheriff’s return thereon, and there rested its case. Upon this state of case, the appellant asked to be admitted to bail, propounding, that the .case made wg,s not such “ evident ” case as is contemplated in the Bill of Rights. The court refused this claim, holding, in effect, that the papers put in evidence made a prima facie “evident” case against the relator, placing upon him the burden of showing by evidence that the homicide was not murder of the first degree. The court *128grounded this holding upon Ex parte Randon, 12 Texas Court of Appeals, 145. An exception was reserved and is now presented to this court.
Was this holding in the Randon case a correct exposition of the law? Section 11 of the Bill of Rights provides: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses where the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found, upon examination of the evidence in such manner as may be prescribed by law.” That portion of this reservation of right to accused persons which prescribes the quantum of proof required (“evident” proof) may be rendered in another form. Thus: All prisoners shall be bailable by sufficient sureties in all cases, capital or otherwise, unless the proof be evident that the offense is capital. Hence, all persons charged with capital offenses are bailable by sufficient sureties unless the proof is “ evident;” the rule as to bail being that whether the offense be capital or otherwise, bail shall be allowed; and the exception being the case in which the offense charged is capital and the proof “evident.” Unless both these things, viz., the character of the offense and the amount of proof necessary to support it, concur, the offense is bailable. The general rule, therefore, being in favor of bail, the party relying upon the exception to the rule must allege and prove the exception.
The allegation contained in the sheriff’s answer in this case is that the relator is held under an indictment charging a capital offense. Under the rules of pleading in civil cases this answer would be insufficient; since, in order to deny the person charged this right, the proof of its capital nature must be evident. Let us concede for argument that the answer setting up an indictment for murder of the first degree alleges by inference a capital offense in which the proof is evident (a proposition which propounds a legal monstrosity), and that, therefore, the case is brought within the exception; the exception to the general rule being for the benefit of the prosecution, the prosecution must prove it. It must be shown by the State, from the evidence, that the proof is “evident” that the relator is guilty of a capital offense. But it is insisted that this is shown by the indictment, which charges the offense to be capital. Let it be conceded that the indictment furnishes proof of the allegations therein made, what are these allegations? They are that the relator is guilty of murder of the first degree, and hence guilty *129of a capital offense. There is no" allegation that the relator is guilty of a capital offense in which the proof is “evident.” The indictment is as silent as the grave as to the character of the proof. The grand jury are not required to find the proof “ evident ” to justify them in making a presentment for murder of the first degree, or any other offense concerning which they inquire. Looking to the indictment, therefore, we find that the relator is only charged with a capital offense, and nothing further, and we have seen that a capital offense is bailable in all cases, saving and excepting where the proof is evident.
We desire now to discuss the propositions as bearing upon the questions stated in the Randon case, before cited.
1. “ Where an applicant to bail is shown to be held in custody under a capias issued 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 indicted is a bailable one. In other words, the applicant must show that, though held to answer a charge of capital offense, the proof is not evident against him, in order to meet the requirement of the Bill of Rights.”
It is true that when the prisoner is held under a capias founded upon a valid indictment, he is not illegally restrained, of his liberty. And this would be equally true if the indictment charged murder of the second degree, or theft. But can this be said when the prisoner is ready with sufficient sureties demanding bail of the proper authority? The restraint is illegal in no case in which the prisoner is held under a legal capias, whether charged with a capital crime or misdemeanor. The illegality consists in holding him when he applies for bail to the proper authority, with sufficient sureties, and is denied bail. And as the general rule in all cases, whether capital or not, is in favor of bail, to justify a denial of it the State must bring the case within the exception, by producing testimony to show a capital offense in which the proof is “evident.”
2. It was further said in the Randon case; “The court, be- ■ ing 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.”
The position here assumed is that, where a prisoner is charged with a capital offense, the presumption of guilt arises, and at least a prima facie case is presented. I hold that nothing be*130yond allegations can be presumed, if anything can be presumed at all. And, conceding that presumptions may be made rrom the charge of the indictment, no presumption can be made without allegations. As we have seen that the indictment merely charges a capital offense, we may presume the prisoner guilty of capital offense, and nothing further. But this does not meet the requirements of the Bill of Rights; for though capital, unless the proof is “evident” that it is so, the offense is bailable. It is, therefore, clear that to sustain this second proposition, the charge of the capital character of the offense must be proved, and, further, that the proof of its being capital is evident. We are assuming as true more than is alleged; for the presumption that the proof is evident—being unsupported by allegations—is without support, and is unwarranted.
We have been treating the subject upon the assumption that some presumptions may be indulged from the fact that the grand jury has charged a prisoner with a capital offense. We now propose to discuss the question as to whether any presumption can be legally drawn from the charge in the indictment at all. We seriously ask, by what authority can a court hold that which has never been held as proof in any other case, as proof “evident” in this case? Why shall we say that the presentment of a grand jury is evidence in this, when it is evidence in no other case? To illustrate: A is indicted for a capital offense, and on an application for bail the indictment proves him guilty as charged. B is indicted for a capital offense; is upon final trial, and the indictment proves nothing—is evidence of nothing except that B is indicted for a capital offense. We demand a reason for this distinction; for, if the indictment proves guilt in A’s case, its probative force is just as cogent in B’s case. In A’s7 case, the proof must not only show guilt of a capital offense, but it must be “evident.” In B’s case, the proof must show guilt beyond a reasonable doubt; but in both cases the guilt of the party is the issue of fact to be determined. 'If it be granted that proof beyond a reasonable doubt and “evident” proof are the same, so far as quantum of proof is concerned, then the fact - to be determined in both cases would be precisely the same,.and with the same quantum of proof. How, then, it is asked, can the indictment be presumptive proof of one and not of the other? Upon what principle of evidence can this distinction he sustained? Mr. Bishop, one of the most philosophical of our elementary writers, in his work on Criminal Procedure, makes the following *131remarkable observation: “The grand jury is a part of the court, and the judge, after it has found an indictment, should assume that it had evident proof, so that, in a capital case, prima facie the indicted defendant is not entitled to bail.” Coming from this high authority, this is indeed a startling proposition. As the grand jury is “a part of the court,” upon its finding alone the judge should assume that it (the grand jury) had evident proof. This would be a most reckless assumption, unwarranted from the known conduct of grand juries, by reason or any rule of presumption. Is not the grand jury “a part of the court” in any case of indictment? If so, why may not the jury, on final trial, as well as the judge on hearing for bail, assume, from the finding of the indictment, that the party indicted is guilty? This last assumption is as reasonable as that made by the judge; for in the first case the judge assumes from the indictment that the proof before the grand jury was “evident;” assumes that the grand jury would not have presented an indictment charging a capital offense without “evident” proof of guilt of such offense; that the grand jury had before it a character and amount of proof not required by any State or country as a basis for the presentation of an indictment, or assumes as a general rule that the party indicted for a capital offense is evidently guilty of such offense. We defy the production of such an illogical, unreasonable and unwarranted assumption of fact, save in cases of this character, viz., bail.
Let us pursue the authorities a little further, promising a return to the subject of presumption before closing. In The People v. Lindon & Smith, 19 California, 538, this proposition is stated: “An indictment, under our criminal practice act, is something more than a mere accusation based upon probable cause. It is an accusation based upon legal testimony of a direct and positive character, and is the concurring judgment of at least twelve of the grand jurors that, upon the evidence presented to them, the defendant is guilty.” This inference of the court is drawn from the fact that the statute of that State requires the grand jury to find a bill only in cases in which all the evidence before them, taken together, is such as, in their judgment, would, if unexplained or uncontradicted, warrant a conviction by the trial jury; and if such evidence, unexplained or uncontradicted, would not warrant such conviction, they ought not to find an indictment. The constitution of that State contains a provision that “ all prisoners shall be bailable by sufficient sureties, unless *132for capital offenses, where the proof is evident or the presumption great.” It will be seen at once that the inference made from the finding of the indictment is based upon the fact that the law requires that there shall be before the grand jury legal and direct testimony sufficient to warrant conviction upon final trial upon the offense charged. The law requiring this, it is assumed that the grand jury obeyed thie law, and that such testimony was in fact before them. It will also be observed further on that the court assumes from the indictment, not that the proof was evident, but that the presumption was great. To the same effect are most, if not all, of the cases upon this subject. (State v. Mills, 2 Dev., 421; Hight v. The U. S., 1 Morris, 411; Lord Mahan’s case, 1 Salk., 104; The Territory v. Benoit, 1 Martin, La., 142.)
In this State, however, the prisoner is bailable unless in a capital case where the proof is “evident.” Presumption has no part or lot in this matter. If, however, we use the word “presumption” to express the effect or result of the circumstantial evidence in the trial for bail, we would not object; for it would, when thus used, be proof. But we deny that a presumption from the presentment of the indictment can be tortured into proof.
But to return to the case under consideration. It is held that “The finding by the grand jury of the indictment can not be reviewed on application for bail in capital cases. The statute makes no provision for preserving the testimony taken before the grand jury, and impliedly prohibits the disclosure of such testimony, except in certain cases specially named. Nor can affidavits or oral testimony as to the guilt or innocence of the accused, be received to rebut the presumption of guilt arising from the indictment in capital cases, except under special and extraordinary circumstances.” In support of this proposition, decisions from States having like constitutional provisions, as well as from, the common law, are cited, viz: The People v. Benoit, 1 Martin (La.), 142; The People v. Hyler, Parker’s Criminal Reports, 570; People v. McLeod, 1 Hill, 394; Hight v. The United States, 1 Morris, 410; 1 Chitty’s Criminal Law, 129; State v. Hill, 2 Dev., 421; Burr’s trial, 312.
Now to restate: “All prisoners shall be bailable by sufficient sureties unless in capital cases where the proof is evident or the presumption great.” A is charged by indictment with a capital offense. The presumption is great, because he is so charged. *133The presumption is conclusive, because he is not permitted, on trial for bail, to introduce the witnesses who were before the grand jury, or by affidavits or oral testimony to show his case bailable unless under special and extraordinary circumstances. The result reached is precisely the same as at common law, viz: When indicted for a capital offense, or other felony, the prisoner is not entitled to bail except under special and extraordinary circumstances. This being the result reached by presumption, the prisoner’s right to bail, in a capital case, remains, notwithstanding the Constitution, justas it existed at common law; just as it would if the constitutional provision had made no mention of capital cases at all; and hence the Constitution should have provided that all persons shall be bailable by sufficient sureties, unless indicted for a capital offense; but, if indicted for a capital offense, may be bailed under “special and extraordinary circumstances.” This, however, would have been superfluous. Under the Constitution the prisoner is entitled to bail in capital cases unless the proof is evident or the presumption is great; but by construction he is entitled to bail in capital cases only under “ special and extraordinary circumstances.” How, this construction is correct if “proof evident or presumption great” means nothing more nor less than a case where the prisoner is indicted for a capital offense.
The common law rule being well understood by the Constitution makers, may we not with reason presume that it was intended to change this rule and give the prisoner, whether charged by indictment or otherwise, the right to bail in capital cases, unless where the proof was evident, or the presumption (arising from legal testimony) was great P May we not for once presume that, instead of approving the common law rule, in capital cases as well as other felonies, it was the intention of the Constitution makers to depart from the common law P For it appears very difficult, in a great many instances, for the people in their sovereign capacity to break loose from the common law. Though employing the clearest and most explicit language to express their will, the courts, when called upon to enforce their enactments, with hot haste rush to the common law for construction where none is needed, and frequently by assumptions, reckless presumptions and constructions, emasculate or render nugatory the simplest and clearest constitutional provisions.
In this case what have common law rules to do with this plain provision of the Bill of Rights? The meaning: is obvious. “ All *134prisoners shall be bailable by sufficient sureties, unless in capital cases where the proof is evident or the presumption great.” What is meant by “ evident” proof? Undoubtedly such proof as shows the prisoner’s guilt, at least, beyond a reasonable doubt. What is meant by presumption great? Evidently that the presumption (arising from competent legal evidence, properly ascertained) of guilt of capital offense is fixed at least beyond reasonable doubt. Now, by what authority and upon what ground can a court hold the “ presumption great,” from the mere finding of the indictment? Solely upon a common law rule which was made in the absence of such a provision as is contained in the Constitution.
This rule, it may be added, is closely allied to a family of rules which were blots upon the judicial history of England; such as that in felony cases the accused was not permitted to introduce any testimony, or allowed counsel; and, when afterward allowed to introduce witnesses, they were not permitted to be sworn. “The prisoner was not permitted, in felony cases, to call witnesses, though present; and the jury were to decide on his guilt or innocence, according to their judgment, upon the evidence offered in support of the prosecution. And though this latter practice of rejecting evidence for the prisoner was abolished about the time of Queen Mary, yet the witnesses could not be sworn in behalf of the prisoner, but were examined without any particular obligation, and therefore obtained but little credit with the jury. It is noticeable that Queen Mary, in appointing Sir Richard Morgan Chief Justice of the Common Pleas, enjoined him 1 that, notwithstanding old errors, which did not admit of any witness to speak, or any other matter to be heard in favor of the adversary, Her Majesty being party, Her Highness’s pleasure was that whatever could be brought in favor of the subject should be heard, and, moreover, that the justices should not persuade themselves to sit in judgment otherwise for Her Highness than for the subject.’ The greatest legal authorities are evidently of opinion that there was no foundation in reason for these tj vannical practices.” (1 Chitty’s Crim. Law, 624.)
Now, it is very remarkable, indeed, that “the greatest legal authorities” were “decidedly of the opinion that there was no foundation in reason or in justice for these tyrannical practices,” and yet a woman, not presumed to be learned in the law, should, in advance of the learned judges, take this first step forward on the line of justice and reason. By her the tyranni*135cal practice established by the learned judges was repudiated; and her Chief Justice of the Common Pleas, as well as other justices of the realm, were enjoined “not to persuade themselves to sit in judgment otherwise for Her Highness than for the subject.” Fair play—even handed justice—was to be the rule for the future.
Upon what foundation, presumption or assumption, did this rule rest? There seems to have been two grounds: 1, that as the sovereign was a party the subject should not be permitted to impeach or question the testimony offered by this high litigant,by introducing other witnesses; and, 2, that, since the prisoner was on trial for felony, the witnesses would, in view of the fearful consequences, speak the truth, the whole truth and nothing but the truth, as bound by oath to do. But in this there was a terrible mistake, the proposition being unsupported—indeed, in direct conflict with the fact—in a large number of cases. Hence “ the greatest legal authorities ” pronounced the rule “ tyrannical and without foundation in reason or justice.” In felonies, other than treason, the prisoner was denied counsel. We are told it was the duty of the judge to examine witnesses for him; to advise him for his benefit, and to assist him in defending himself; taking advantage, also, of every obvious defect or irregularity in the conduct of the prosecution. (1 Chitty’s Crim. Law, 633.)
Now, since it was the duty of the judge to act as counselor, friend and advisor of the accused, it was presumed—assumed— that he performed his duty, and bore himself faithfully in this responsible relation. And notwithstanding the absolute fact that, in very many cases, a malignant prosecutor was found in the person of the judge, the silly and unjust presumption remained the same. It was sufficient cause to deny the accused counsel, because the law imposed that duty upon the judge. Was this duty always honestly performed? The blood of hecatombs of innocent victims sacrificed to this monstrous rule furnishes an eternal negative to the assumption.
Now to the analogy: It was the duty of the judge, under the English rule, to represent and protect the interests of the prisoner, and, therefore it was presumed—assumed—that he discharged the duty; hence he was denied counsel. It is the duty of the grand jury, under the California statute, to have before them sufficient evidence, prima facie, to convict, before they shall find an indictment; therefore, it is presumed—assumed— that such evidence was in fact before them. I assert that it is *136as reasonable to indulge a presumption that the judge performed his duty as that a grand jury did its duty, as imposed by statute. On legal and lay authority we know that the judge too often failed in his duty; and so do we know that grand juries, even though the rights of the accused be protected against hasty and immature findings by a California statute, have failed and do fail of their duty. If the reported cases be taken as a test, there is not one case of ten tried under indictment for capital offense, in which the prisoner is guilty of such offense.
I now take leave of the case made under the California statute, remarking that it has little, if any, application to the case in hand. For, as has been seen, 1, the constitutional provision with, reference to bail in that State radically differs from ours, bail not being there allowed if the proof be evident, or the presumption great; and, 2, the law of that State requires that the grand jury shall have before them such evidence as would convict upon final trial for the offense charged in the indictment; and, finally, there is no authority in the practice of that State for using the witnesses, or their testimony, who were before the grand jury on application for bail. In this State the Constitution provides expressly that the provisions relating to the right to bail, “shall not be so construed as to prevent bail after indictment, upon examination of the evidence, in such manner as may be prescribed by law.” (Bill of Rights, sec. 11.)
Thus it appears that there may be an “examination of the evidence,” notwithstanding the indictment. As to what is meant by “ the evidence,” there is scarcely need for explanation. Referring again to the California cases, it is asked, if the Constitution confers a right, shall it be rendered nugatory because neither the common law nor the statute provides means for enforcing the right?" I concede that the Constitution may confer a right in such manner as that it is inoperative without auxiliary legislation, but I am not aware that in order to give force to the Constitution it is necessary to repeal existing laws which stand in the way of its enforcement. The Constitution, being the organic law, ex propria vigore, removes all legislative obstacles to the proper working of its provisions. Several cases have been examined which arise under a constitutional provision that “all-prisoners shall be bailable by sufficient sureties, unless for capital offenses, where the proof is evident or the presumption great;” and the uniform construction given to the latter clause is that “ presumption great ” is furnished by the finding and *137presentment of a grand jury. None, however, go to the extent of holding that either is proof of guilt of the offense charged. Referring to the cases on the subject, it will be observed, as a logical result arising from the doctrine that th.ere is a prima facie case raised by the indictment, that the presumption is not made directly from the evidence, but indirectly. From the indictment—not the evidence—it is presumed that there was evidence before the grand jury, of such probative force as to render the guilt of the indicted party evident. The judge who tries the right to bail need not pass upon the evidence directly; but he adopts the conclusion of the grand jury, assuming that sufficient evidence was before that body to render the guilt of the prisoner evident; hence this presumption of a prima facie case is not reached in the first instance by the judge, but by the grand jury; and therefore the decision—the judgment—of the grand jury upon the question of proof is practically made the decision of the judge, notwithstanding he is the proper authority to pass upon the applicant’s right to bail. Will it be seriously contended that by such a line of argument the guilt of the prisoner can possibly be made evident?
It will be borne in mind that there is no law in this State prescribing the quantum of proof necessary to warrant the grand jury in presenting an indictment, as is the case in California; and hence the presumption that the grand jury obeyed the law does not arise. The only direction is given in the oath to be taken by the members of that body to the effect that they "shall present no person from envy, hatred, or malice; neither shall they leave any person unpresented for love, fear, affection, or hope of reward; but they shall present things truly as they come to their knowledge, according to the best of their knowledgeIn this latter portion there is nothing said about the quantum of evidence, or the method by which the things to be presented are to be brought to their knowledge. Usually this is done by the examination of witnesses; but in many cases presentments are made upon depositions taken by examining courts, and in other cases upon reports made by individual members of what they have learned from others; and not infrequently the rumors and suspicions among the people are reported and acted upon as sufficient to support the presentment. With these observations, let us proceed with the argument on the degree of presumption arising from the indictment.
Possession of property recently stolen, unexplained, is prima *138facie evidence of guilt. Is it because the law makes it so? By no means. This presumption rests upon a solid foundation, which is this: That, in the great majority of cases, the party found in possession recently after the theft, without explanation, is in fact the guilty taker. Possession of personal property is also prima facie evidence of ownership, for the obvious reason that, in a vast majority of cases, the party in possession of such property is in fact the owner. Let us now apply this simple rule- to the presumption under discussion. We will presume, for the purposes of the argument, that, in a majority of cases preferred by indictment, the grand jury had before them evident . proof of the guilt of the party charged. A is indicted for a capital offense; therefore—following out the syllogism—the proof before the grand jury, upon which the indictment was found was evident. Proximately, the conclusion is correct; but there is a lapse in an important link of the chain of premise; for, who that is informed of the actual working of the grand jury system will assert that in a majority or one-half, or even a tepth, of the presentments made under it, the party charged of capital offense was so charged upon evident proof of guilt.
To view the.matter in another light: In a great majority of cases, in which a party is indicted for capital offense he is, in fact, guilty of capital offense. A is indicted for capital offense; therefore, A is guilty of such offense. The same gap in the premise exists as before; for it may be safely asserted that of . five indictments charging capital offense, there is not more than 1 one which the evidence supports. We remember but very few instances in the judicial history of the State of a grand jury’s '■ presenting an indictment for murder of the second degree, or. negligent homicide; and bills of indictment charging manslaughter are rare exceptions in the criminal pleading of the State. The practice is to indict for the highest grade, and the general result is a conviction for a lesser grade. If, therefore, there is not more than one of five parties actually guilty of; capital offense, though thus charged, the correct presumption would be that the chances of guilt were in that ratio. And, if we are to presume anything at all from the indictment, the logical and just presumption would be that there are four cases of five in which the offense is either less than capital or no offense at all. On this line of reasoning we are, therefore, to conclude that, in the ratio of four to one, the presumption arising from indictments for capital offense is against the guilt *139of the party as charged, and in favor of bail upon the absolute facts.
We now desire to make some observations on the question as to what presumption, if any, may arise from the presentment of an indictment. Bearing upon the duties of officers in whose custody the accused may be, the nature and gravity of the charge is of first importance. And, in passing upon the right to bail and the amount thereof, the character of offense charged should be looked to. This should be done in all cases in connection with the proof looking to the character of the offense charged and the applicant’s ability to give bail. But the right to give bail in no case, except capital, is to be determined by the strength of the criminating testimony. The nature and gravity of the charge control up to the hearing for bail. Upon the hearing, it is in all cases the nature of the charge, the character of the evidence and the ability of the applicant which control. But the right to bail, except in capital cases, depends upon none of these. Before the evidence is developed in any form of hearing, the officer having the accused in custody, or the court, if in session, is governed as to the amount by the character of the charge and the ability of the accused, taking as a guide that the ends of justice are met when the amount fixed renders it reasonably certain that the party bailed will appear and answer. In this there is no presumption of guilt, the court not looking to this, unless required by the prisoner. But when the prisoner, with sufficient sureties, demands bail, to justify its denial it must be shown that he is guilty of capital offense, and his guilt must be made evident. This can only be done by an examination of the evidence. (Vide latter clause Bill of Rights.) In express terms this right to bail is given in capital cases even, unless guilt is made evident by the proof. Proof is the effect, the result, of evidence; and without evidence, legal and competent, there can be no proof. When, therefore, the examination is had, for which section 11 of the Bill of Rights provides, presumptions, except such as arise on competent evidence adduced on the hearing for bail, are not to be indulged; ' because the right to bail in capital cases must be determined by the evidence; the right in other cases being clear, irrespective of the evidence. At the common law, indictment for felony, whether capital or not, precluded the accused from a hearing on the facts; consequently, whether guilty or not, his “ sureties ” were “ the four walls of the prison.” Under this barbarous *140rule, the dungeons of Great Britain held closely immured for years some of the most virtuous men of the kingdom, without trial and without right to demand a hearing.
Admonished by these grievous abuses, may we not reasonably conclude that, our Constitution makers meant to depart from the common law practice, with its illogical presumptions of guilt arising from a criminal pleading, and in doing so to guard against its revival by securing in the organic law larger intendments in favor of personal liberty ? In this awakened care for the rights of the citizen, the careful framing of our Bill of Rights and great writ of right—the habeas corpus—found its incentive. With these muniments of right to hedge him about, the accused, though steeped to the eyelids in crime and pent in by bars of triple steel, may demand enlargement for inquiry into the causes of his distraint. Upon such inquiry his liberty is not to be presumed away by legal fiction springing out of the allegations of an indictment; his right to bail is indefeasible, save by Ms own criminal acts, the verity whereof is to be determined by legal evidence adduced upon the hearing. Evident guilt of capital offense, established in the proceeding, is the sole condition of forfeiture of the right to bail.
What presumptions, then, it is again asked,'arise from the indictment? As none arise upon final trial, so do none upon a hearing for bail; for the presumption of innocence follows the accused until his guilt is fixed by legal evidence beyond a reasonable doubt. The officer having the accused in custody should look to the nature of the charge, whether his prisoner be indicted or not, with a view of regulating the care and means to be used for his safe keeping. What presumption he or others may draw from the existence of an indictment can never be a practical matter bearing upon the subject. Whether indicted by a grand jury, charged by complaint or committed by a magistrate, the prisoner’s right to a hearing remains the same. And upon the hearing of the evidence his right' to bail is determined; determined by the testimony heard, and not by the indictment or the nature of the charge. Presumptions of guilt before hearing for bail may or may not be drawn, for they are comparatively innocuous; but when the hearing begins they must step aside and give way to the evidence. In the Randon case I assented to a doctrine differing from that here expressed; and my responsibility for the opinion filed in that case is equal with that of my learned brother who prepared and read it from the bench. Subsequent and *141more extended examination into the reason upon which the rule rests has persuaded me of my error; and, while consistency is much to be desired, the maintenance of it should be secondary to faithfulness of conviction. I am of opinion that the burden was on the State, by competent testimony, to make evident the guilt of the prisoner of capital offense.
We now come" to consider the appeal upon its merits. Does the evidence make evident the proof of guilt of a capital offense? This proof must be made by competent evidence adduced upon the hearing for bail; and all illegal testimony brought out, over objection, must be treated here just as though it formed no part of the statement of facts. It appears from the record that one-John Alexander, some twenty-five or thirty minutes before the killing, procured of Leonard Eck a pistol of calibre forty-four or forty-five, stating to Eck that he wanted the pistol for Smith, the applicant, and that the pistol was not loaded when procured. In a very short time after this, Alexander carried a forty-five calibre pistol to Petmecky’s, seventy-five yards distant from the Raymond House (near which the homicide occured), purchased cartridges and loaded the pistol; this being fifteen or twenty minutes before the shooting. Alexander worked for applicant at the Raymond House, but left soon after the killing and has not been seen since. Immediately after the shooting, applicant handed Sheriff Hornsby, at his request, a forty-five calibre pistol,nickel plated and walnut stocked. The pistol obtained from Eck by Alexander was a forty-four or forty-five calibre six shooter, of Colt’s pattern, and was returned the next or second day after the killing by some person not known. The object of this evidence was to show preparation, and hence a cool and deliberate killing. Is applicant connected with Alexander and responsible for his acts? Hot by competent, but hearsay evidence. Were the acts and declarations of Alexander of the res gestee? We think not. Was the pistol obtained by Alexander in fact the weapon used by applicant Smith? May have been, but is not shown to have been by such proof as was accessible, if that was the fact. What did Hornsby do with the pistol handed him by Smith? Who returned Eck’s pistol? Was Ecl^’s pistol nickel plated and walnut stocked? These are questions pertinent to a proper understanding of this matter. We will not decide whether or not the acts and declarations of Alexander would be admissible in case it should be shown that applicant used the Eck pistol; but we are clear in the opinion that they were not admissible under the facts as presented in this *142record. Hence, in passing upon this case these acts and declarations are not considered as part of the evidence.
Before passing upon the right of appellant to bail in, this case, we desire to notice a rule established by this and other courts of last resort. It is this: -cIt is a safe rule, where a malicious homicide is charged, to refuse bail in all cases where a judge would sustain a capital conviction, if pronounced by a jury, on such evidence of guilt as was exhibited to him on the hearing of the application to admit to bail; and, in instances where the evidence of the State is of less efficiency, to admit to bail.” (Ex parte Foster, 5 Texas Ct. App., 225; Commonwealth v. Keeper of Prison, 2 Ashm., 227; Hurd on Habeas Corpus, 438; State v. Simmons, 19 Ohio, 139; Ex parte Bryant, 34 Ala., 270.) Before entering upon the discussion of this rule, however, it is to be observed that the right to bail is not determined by a jury, but is to be granted or refused by the judge or court; and, further, that a prisoner is entitled to bail, unless he be guilty of capital offense and the proof of his guilt be made evident. These two propositions are distinctly affirmative in their nature: First, the'proof must be evident that the offense charged is capital; and, second, the proof must be evident that the prisoner is the perpetrator of such capital offense. Who is to test their verity? The jury? By no means. The judge or court, having the right to. bail, is the only tribunal which can determine their truth. What, therefore, has the supposed verdict to do with this matter? With these observations in mind, let us examine the merits of the rule. If a jury, says this rule, were to convict of capital offense upon the evidence adduced upon a given hearing for bail, and the judge would sustain such conviction, then bail should be refused. There is nothing practical in this rule; it is, in fact, misleading. It assumes that the jury will convict of capital offense, in a case in which the proof of guilt of such offense is not evident; otherwise there is nothing in the rule. Suppose, in the judgment of the judge hearing the application for bail, the proof is not evident, upon what legal intendment could he suppose a jury would convict? If the guilt of the prisoner is not evident to the judge, he can not fairly assume that a jury would convict, unless upon proof less than evident proof. On the other hand, if the proof of guilt is evident, there is no need of a supposed conviction; the test is not wanted, for the question would be decided before it could be applied. But, two views may, in some cases, with reason be taken of the facts *143of a case; one tending to show evident guilt, while in the other guilt may not appear, or may not be evident. Mow, we would, in the name of the humane principles of the criminal law, inquire a reason for assuming that a jury would take the harsher view of the case, and not only convict, but convict of capital offense?
As above stated, the judge or court, and not a jury, must decide the right to bail. The applicant has a right to the judgment of the judge upon his application. It will not do for the judge to speculate upon the decision of a jury, and thus substitute a supposed verdict for his judgment; for it is his duty and the applicant’s legal right that he, the judge, shall determine the matter. Mow, let us suppose that, in the opinion of the judge, the proof is not evident, what right has he to engage in suppositions at all? If his judgment favors the granting of bail, his obligation to duty should enforce it, without indulging in speculations as to what a jury might do in the premises.
It may be further said that the rule under discussion contains a serious error, since it assumes that the judge will not sustain the verdict unless the proof is evident—evident not alone to the mry but to him. To deny bail the proof must be evident; hence, the verdict of the jury must be equal to, or rather the result of, evident proof; if it is not, the measure of the Bill of Bights is not met and supplied.
By what rule should the trial judge and this court be governed with regard to verdicts of juries? Referring to the ninth subdivision of Article 777, Code of Criminal Procedure, and the authority of the Supreme Court to reverse the judgment in a criminal action, upon the law or the facts, Chief Justice Roberts, in Talbot v. The State, 44 Texas, 95, says; “ These provisions impose upon the district court in the first instance, and afterward upon this court, the responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand and become a precedent in the adjudication of offenses under the law. The performance of this duty on the part of the court is the exercise of a legal discretion and judgment as to what facts should be sufficient to rebut the legal presumption of innocence to which every one is entitled upon his trial for an offense. * * * There must be legal and competent evidence particularly identifying the defendant with the transaction constituting the offense charged against *144him.” In this there is nothing said about proof establishing guilt beyond a reasonable doubt, nor anything whatever mentioned regarding evident proof. Evident proof applies to applications for bail; proof beyond reasonable doubt, to jury trials; pertinent proof, identifying the defendant with the transaction constituting the offense charged against him, is the rule which should control the trial judge and this court in passing upon the sufficiency of the evidence to sustain the verdict.
Again, if there be a conflict in the evidence, and that which supports the verdict be reasonable and pertinently connecting the defendant with the transaction which constitutes the offense charged, this court will not reverse, notwithstanding the exculpating evidence may be competent, natural and reasonable. If, however, there is no conflict, but the exculpating facts explain and render consistent with innocence the criminating facts, which, prima facie and without explanation, are sufficient to support the verdict, this court will reverse in cases in which the credibility of the witnesses who testify to the exculpatory facts is not in some way drawn in question. Should these rules apply to and govern the judge, or the court, in passing upon the right to bail? Upon final" trial the jury are the judges of the weight of the testimony and the credibility of the witnesses; and when they have performed this duty and rendered a verdict of guilty, this court is loath to disturb their verdict. Let us illustrate this matter: A is upon trial for murder. Quite a number of witnesses swear to facts which, if true, warrant a conviction. On the other hand, an equal number testify to facts which, if true, justify an acquittal. The criminating and exculpating facts are here in conflict. Now, if in this state of case, there should be a conviction, this court would not disturb the verdict. But suppose such a case was presented to the judge, or to this court, on hearing for bail? Could it, with reason, be said that the proof was evident? By no means, and the assertion is ventured that all courts of last resort frequently affirm judgments upon a state of facts under which, if called to pass in the first instance, they would have reached a different conclusion.
Now, to be in harmony with the Bill of Rights, in order to constitute the verdict of the jury a just test the rule should require a reversal in cases where the proof is not evident. The standard can not be lowered; the prisoner must have bail unless there be such proof. Who will assert that the trial judge, or *145the court, must award a new trial, unless the proof of guilt be evident?
From the propositions argued, the following rules for application to this case are deduced: 1, the burden is on the State to establish by evident proof that a capital offense has been committed; 2, that by the same character of proof the prisoner is the guilty perpetrator of such offense; and, 3, that to deny bail the judge, or court, must find both these propositions in the affirmative.
A discussion of the evidence in this case would be improper, premising that two or more theories are presented, each having support in evidence and reason. I do not indicate which theory I think is supported by the weight of the testimony, as well as the more cogent reason. Suffice it to say that there is evidence and some reason to support either. This being the case, the proof is not.evident. It is not here intimated that bail is to be granted in all cases where the evidence is conflicting. If the criminating facts are so cogent and conclusive as to show that the conflicting evidence, or theory, is evidently not true, by reason of mistakes or perjury, etc., bail should be denied.
The views here discussed are concluded with an extract from the opinion of Justice Moore in Ex parte Miller, 41 Texas, 313: “ The only question, therefore, which we are called upon to determine, or which it is even proper for us to consider in this case in its present attitude, is, Does it evidently appear from the testimony submitted to us that appellant is guilty of murder in the first degree? If not, although he may be guilty as charged in the indictment, we have no discretion, but must admit him to bail. And as we are not authorized to analyze and weigh the testimony to ascertain and determine whether it preponderates in favor of or against appellant; nor can we speculate as to the conclusion to which the jury may come if the case was submitted to them on the evidence in the record before us-, and since, whatever may be the conclusion which should be reached by those whose duty it may be to decide it, when appellant’s guilt or innocence (or, if guilty, the degree of his guilt) comes to be finally determined, a careful examination of the record does not authorize us, in view of the conflict in the evidence, * * * * to say that the proof of his guilt of a' capital offense is evident, -we must hold that he is entitled to bail.” The italics are ours, and are used to call special attention to the pointedly pertinent portions of the extract.
*146For the reasons herein given I am impelled to dissent from the views of the case and the conclusion drawn by my learned brethren of the bench.
Opinion delivered February 16, 1887,