Ex Parte Elsmore

Court of Criminal Appeals of Texas

Ex Parte Elsmore

111 S.W.2d 713, 133 Tex. Crim. 397, 1937 Tex. Crim. App. LEXIS 608

CourtCourt of Criminal Appeals of Texas

DecidedDecember 22, 1937

DocketNo. 19566.

StatusPublished

This text of 111 S.W.2d 713 (Ex Parte Elsmore) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex Parte Elsmore, 111 S.W.2d 713, 133 Tex. Crim. 397, 1937 Tex. Crim. App. LEXIS 608 (Tex. 1937).

Pincite

Opinion

CHRISTIAN, Judge. —

Relator is charged by indictment with the offense of murder. He was heretofore convicted and his punishment assessed at confinement in the penitentiary for 25 years. On appeal to this court the judgment was reversed for the reason that the trial court failed to charge on murder without malice. See Elsmore v. State, 104 S. W. (2d) 493. Upon a second trial the jury failed to agree, and a mistrial was declared. Thereafter, after a hearing under a writ of habeas corpus, relator was denied bail. Hence this appeal.

Bail is a matter of right unless the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered. Ex parte Powell, 298 S. W., 575. We are of opinion that the testimony before us does not make evident the fact that upon a trial a fair jury, considering such testimony, would likely inflict the death penalty. Under the circumstances, we are constrained to hold that the trial judge committed error in denying bail. .....

The judgment denying bail is reversed, and bail granted in the sum of $7,500.

Judgment denying bail reversed and bail granted.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

Free access — add to your briefcase to read the full text and ask questions with AI

CHRISTIAN, Judge. —

Relator is charged by indictment with the offense of murder. He was heretofore convicted and his punishment assessed at confinement in the penitentiary for 25 years. On appeal to this court the judgment was reversed for the reason that the trial court failed to charge on murder without malice. See Elsmore v. State, 104 S. W. (2d) 493. Upon a second trial the jury failed to agree, and a mistrial was declared. Thereafter, after a hearing under a writ of habeas corpus, relator was denied bail. Hence this appeal.

Bail is a matter of right unless the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered. Ex parte Powell, 298 S. W., 575. We are of opinion that the testimony before us does not make evident the fact that upon a trial a fair jury, considering such testimony, would likely inflict the death penalty. Under the circumstances, we are constrained to hold that the trial judge committed error in denying bail. .....

The judgment denying bail is reversed, and bail granted in the sum of $7,500.

Judgment denying bail reversed and bail granted.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

Cite This Page — Counsel Stack

Bluebook (online)

111 S.W.2d 713, 133 Tex. Crim. 397, 1937 Tex. Crim. App. LEXIS 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-elsmore-texcrimapp-1937.

Opinion

Related

Cite This Page — Counsel Stack