White, J.
This appeal is from a judgment rendered upon a second application for habeas corpus, refusing bail to applicant. The first application was made and heard before indictment found, and the application in this case after indictment. Applicant’s right to a second writ of habeas corpus was based upon the ground of newly discovered evidence.
Upon the hearing in chambers, the district judge rendered the following judgment, viz.: “It appearing to the court that the evidence introduced by the applicant alleged to be newly discovered was not in fact such evidence, and accordingly not sufficient to authorize the court to change the former judgment of the court refusing bail, and for other and sufficient reasons, it is ordered and adjudged by the court that the prisoner, Scurry Foster, be remanded to the custody of the sheriff of Austin County, to be by him confined, without bail, to answer the indictment preferred against him by the grand jury of said county, charging him with the murder of Nicholas Umland,” etc.
With regard to second applications for the writ of habeas corpus, our statute reads thus: “A party may obtain the writ of habeas corpus a second time by stating in the application therefor that since the hearing in his first application important testimony has been obtained, which was not in his power to produce at the former hearing. He shall also set forth the testimony so newly discovered; and if it be that of a witness, the affidavit of the witness shall also accompany such application.” Pasc. Dig., art. 2642.
A casual reading of the language of this statute might lead to the inference that such second applications would be limited exclusively to evidence which was newly discovered. Such, however, is not our interpretation, based upon a proper construction of the whole article, and, as we think, in perfect consonance with the broad principles of justice and human liberty upon which the writ is founded, and for [644]*644the better protection and security of which its privileges were intended mostly to subserve. We are of opinion that the statute intended to confer the risfht in two classes of cases: First, where important testimony has been obtained, which, though not newly discovered, or which, though known to him, it was not in his power to produce at the former hearing; second, where the evidence was newly discovered.
In either case his application, if it be on account of the testimony of a witness, should not only be accompanied by the affidavit of the witness, but the reasons why the testimony was not adduced should be fully stated, in order that the judge or court to whom the application was addressed might know, in the one case, why it was out of his power to produce it at the former hearing, and in the other, such facts stated as would satisfy the court that the failure to discover the testimony was not attributable to any lack of proper diligence on his part; in other words, the application should be so full and complete as to apprise the court of all the facts necessary to be known, that it might act advisedly in granting or refusing the application.
We cannot better, perhaps, illustrate our idea than by the facts presented in the case at bar. As we have seen, the application was upon the ground of newly discovered evidence. In such a case, we take it, all the recognized rules with reference to newly discovered testimony on motions for new trials would obtain and govern. The showing should be the same. If the showing itself discloses, we will say, want of diligence, or that the evidence is cumulative, or that it was intended to impeach a witness, or any other fact which whould render it insufficient or invalid on a motion for new trial, then the judge or court would be fully authorized in refusing the writ,' and his refusal would be conclusive; for an appeal does not lie from the refusal of a district judge to grant a writ of habeas corpus. [645]*645Ex parte Ainsworth; 27 Texas, 731; Thomas v. The State, 40 Texas, 6.
In this case, 'however, the judge granted the writ; and theu,uponthe hearing, determined that the evidence was not newly discovered. A question is here presented which has •never before arisen in this State, and that is, What should be the practice in this court on appeal, even supposing the court should concur in the view of the District Court that the evidence was not newly discovered? Will we affirm the judgment because the party was not primarily entitled- to the writ? Clearly not. Having granted the writ and heard the-testimony, the evidence thus heard becomes part of the facts of the record. The rule of practice as prescribed by the statute applies-: “ The Supreme Court [Court of Appeals] shall hear the appeal upon the facts and law arising upon-the record, and shall enter such judgment and make such orders as the law and the nature of the case may require.” Pasc. Dig.; art. 3221. “ The opinion of a district or supreme judge shall not be revised as to any incidental question which may have arisen on the hearing of the application for habeas corpus, the only design of the appeal being to do substantial justice to the party appealing.” Pasc. Dig., art. -3222.
The case, then, must be determined by us, not upon the question as to whether- the evidence is newly discovered, but upon the evidence as we find it-adduced on the hearing and presented in the record.
Taking the record as an entirety, and considering all the testimony as it here appears, is the prisoner entitled to bail? Our present Constitution- provides that “ all prisoners shall be bailable by sufficient sureties, unless for capital otfenees when the proof is evidént.” Const., art. 1, sec. 11. What is the proper definition to be given and the legal interpretation to be placed upon the words, “ when the proof is evident,” as used in the constitutional provision quoted, [646]*646has been a most fruitful source of discussion with the legal profession of the State since the adoption of the Constitution of 1869, where the same language is used as in the. present Constitution. No legal construction has ever been directly given it. In the ease-of Ex parte Rothschild,- 2--Texas. Ct. -App. 560, this court promised-to avail itself-of the first .suitable case to discuss, the meaning of -these words, and to declare the rules which would regulate and govern the action of this court in its adjudications upon' habeas corpus cases.
In McCoy v. The State, 25 Texas, 33, our Supreme Court -gave their interpretation of the meaning;of the expression, “ proof is evident or presumption great,” as used with reference to bail, in the ninth section of article 1 of the Constitution of 1845. Roberts, J., says The terms * *- * are as definite to the- legal mind as any words of explanation could make them, and are intended to indicate the same degree of certainty, whether the evidence be direct or circumstantial.. The design is to secure the right of bail in all cases, except in those in- which the' facts might show with reasonable certainty that the prisoner is guilty of a capital offence.”
The omission of the words, “ or presumption great,” and the use of the expression, “ proof is evident,” in the present Constitution, it is contended, materially change the rights of a prisoner, and require, to justify a refusal of bail, the establishment of a much more direct and certain case of guilt than formerly. Doubtless this is so.
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White, J.
This appeal is from a judgment rendered upon a second application for habeas corpus, refusing bail to applicant. The first application was made and heard before indictment found, and the application in this case after indictment. Applicant’s right to a second writ of habeas corpus was based upon the ground of newly discovered evidence.
Upon the hearing in chambers, the district judge rendered the following judgment, viz.: “It appearing to the court that the evidence introduced by the applicant alleged to be newly discovered was not in fact such evidence, and accordingly not sufficient to authorize the court to change the former judgment of the court refusing bail, and for other and sufficient reasons, it is ordered and adjudged by the court that the prisoner, Scurry Foster, be remanded to the custody of the sheriff of Austin County, to be by him confined, without bail, to answer the indictment preferred against him by the grand jury of said county, charging him with the murder of Nicholas Umland,” etc.
With regard to second applications for the writ of habeas corpus, our statute reads thus: “A party may obtain the writ of habeas corpus a second time by stating in the application therefor that since the hearing in his first application important testimony has been obtained, which was not in his power to produce at the former hearing. He shall also set forth the testimony so newly discovered; and if it be that of a witness, the affidavit of the witness shall also accompany such application.” Pasc. Dig., art. 2642.
A casual reading of the language of this statute might lead to the inference that such second applications would be limited exclusively to evidence which was newly discovered. Such, however, is not our interpretation, based upon a proper construction of the whole article, and, as we think, in perfect consonance with the broad principles of justice and human liberty upon which the writ is founded, and for [644]*644the better protection and security of which its privileges were intended mostly to subserve. We are of opinion that the statute intended to confer the risfht in two classes of cases: First, where important testimony has been obtained, which, though not newly discovered, or which, though known to him, it was not in his power to produce at the former hearing; second, where the evidence was newly discovered.
In either case his application, if it be on account of the testimony of a witness, should not only be accompanied by the affidavit of the witness, but the reasons why the testimony was not adduced should be fully stated, in order that the judge or court to whom the application was addressed might know, in the one case, why it was out of his power to produce it at the former hearing, and in the other, such facts stated as would satisfy the court that the failure to discover the testimony was not attributable to any lack of proper diligence on his part; in other words, the application should be so full and complete as to apprise the court of all the facts necessary to be known, that it might act advisedly in granting or refusing the application.
We cannot better, perhaps, illustrate our idea than by the facts presented in the case at bar. As we have seen, the application was upon the ground of newly discovered evidence. In such a case, we take it, all the recognized rules with reference to newly discovered testimony on motions for new trials would obtain and govern. The showing should be the same. If the showing itself discloses, we will say, want of diligence, or that the evidence is cumulative, or that it was intended to impeach a witness, or any other fact which whould render it insufficient or invalid on a motion for new trial, then the judge or court would be fully authorized in refusing the writ,' and his refusal would be conclusive; for an appeal does not lie from the refusal of a district judge to grant a writ of habeas corpus. [645]*645Ex parte Ainsworth; 27 Texas, 731; Thomas v. The State, 40 Texas, 6.
In this case, 'however, the judge granted the writ; and theu,uponthe hearing, determined that the evidence was not newly discovered. A question is here presented which has •never before arisen in this State, and that is, What should be the practice in this court on appeal, even supposing the court should concur in the view of the District Court that the evidence was not newly discovered? Will we affirm the judgment because the party was not primarily entitled- to the writ? Clearly not. Having granted the writ and heard the-testimony, the evidence thus heard becomes part of the facts of the record. The rule of practice as prescribed by the statute applies-: “ The Supreme Court [Court of Appeals] shall hear the appeal upon the facts and law arising upon-the record, and shall enter such judgment and make such orders as the law and the nature of the case may require.” Pasc. Dig.; art. 3221. “ The opinion of a district or supreme judge shall not be revised as to any incidental question which may have arisen on the hearing of the application for habeas corpus, the only design of the appeal being to do substantial justice to the party appealing.” Pasc. Dig., art. -3222.
The case, then, must be determined by us, not upon the question as to whether- the evidence is newly discovered, but upon the evidence as we find it-adduced on the hearing and presented in the record.
Taking the record as an entirety, and considering all the testimony as it here appears, is the prisoner entitled to bail? Our present Constitution- provides that “ all prisoners shall be bailable by sufficient sureties, unless for capital otfenees when the proof is evidént.” Const., art. 1, sec. 11. What is the proper definition to be given and the legal interpretation to be placed upon the words, “ when the proof is evident,” as used in the constitutional provision quoted, [646]*646has been a most fruitful source of discussion with the legal profession of the State since the adoption of the Constitution of 1869, where the same language is used as in the. present Constitution. No legal construction has ever been directly given it. In the ease-of Ex parte Rothschild,- 2--Texas. Ct. -App. 560, this court promised-to avail itself-of the first .suitable case to discuss, the meaning of -these words, and to declare the rules which would regulate and govern the action of this court in its adjudications upon' habeas corpus cases.
In McCoy v. The State, 25 Texas, 33, our Supreme Court -gave their interpretation of the meaning;of the expression, “ proof is evident or presumption great,” as used with reference to bail, in the ninth section of article 1 of the Constitution of 1845. Roberts, J., says The terms * *- * are as definite to the- legal mind as any words of explanation could make them, and are intended to indicate the same degree of certainty, whether the evidence be direct or circumstantial.. The design is to secure the right of bail in all cases, except in those in- which the' facts might show with reasonable certainty that the prisoner is guilty of a capital offence.”
The omission of the words, “ or presumption great,” and the use of the expression, “ proof is evident,” in the present Constitution, it is contended, materially change the rights of a prisoner, and require, to justify a refusal of bail, the establishment of a much more direct and certain case of guilt than formerly. Doubtless this is so. Some, however (able lawyers), go to the extent of insisting that a mere conflict of testimony will necessarily entitle a party to bail, since that cannot be said to be evident which admits of dispute ; and the case of Ex parte Miller, 41 Texas, 213, is .frequently cited in support of this position. When examined with reference to the facts of the case before the court, and which were the facts to which alone the language of the [647]*647opinion relates, or even independently considered, we do not think the rules therein laid down warrant such construction.
Again, it is insisted that the only true and correct meaning of the word “ evident” is that given it by lexicographers whose works are recognized as of standard authority. Take, for instance, the definition given by Webster, and we believe his definition is about the same as that of most standard authors. He defines “ evident” to be, “ dear to the mind; obvious ; plain ; apparent; manifest: notorious ; palpable.” This is very satisfactory, is doubtless accurate and correct, and, as we shall endeavor to show hereafter, not inconsistent with our view of the constitutional expression, “proof is evident,” even when subjected to philological construction. Perhaps we cannot succeed better in making olirselves understood than by declaring the general rules which will control and govern us in refusing bail, under the constitutional prohibition, than by attempting to announce a definite abstract meaning for the constitutional expression, which is not easily defined.
The Supreme Court of Pennsylvania have laid down a rule upon this subject which we think worthy of approval. In The Commonwealth v. Keeper of Prison, 2 Ashm. 227, it is said to be “ 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 Commonwealth is of less efficacy, to admit to bail.” 2 Ashm. 227; Hurd on Habeas Corpus, 438; The State v. Summons, 19 Ohio, 139 ; Ex parte Bryant, 34 Ala. 270.
The same idea is tersely and happily expressed by Brickell, C. J., in Ex parte McAnally, 53 Ala. 495. He says : “If the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offence [648]*648has been committed; that the accused is the guilty agent; and that he would probably be punished capitally if the law is administered, bail is not a matter of right.” See also Ex parte Nettles, Sup. Ct. Ala., A. D. 1878.
We know of no better exposition of our views with-regard to the -proper construction of the constitutional expression, “ proof- is evidentj” than the two rules - quoted; and when subjected to'strictest criticism, We cannot see that they are in anywise inconsistent with the definition quoted from Mr. Webster. Besides this, they furnish ample restrictions to regulate and govern the action of the courts in their adjudications upon- questions of bail in capital cases.
When we apply the doctrine thus enunciated to"the facts in evidence, as shown in the record before us, we are not satisfied that “ the proof is evident.” Consequently,- we believe that the applicant is entitled to bail. We do not wish to be understood as saying that he is not guilty of murder in the first degree, and that this fact may not be made to appear most fully upon his final trial. We are only passing upon the sufficiency of the- evidence as exhibited in this record, and upoii it alone is our opinion predicated. We will not comment upon it, lest our comments should influence the final trial; to decline to do so is the uniform practice, as it has always-obtained in such cases.
In the record we are furnished with an agreement of counsel for the State and applicant, that applicant can give a bond in the sum of $5,000." The court have, therefore, concluded that the sum of $5,000 would be proper in the premises. It is, therefore, ordered and adjudged by the court that the applicant, Scurry Foster, be admitted to bail in the sum of $5,000, with good and sufficient sureties, and that this judgment of the court be certified to the sheriff of Austin County, the officer having custody of said applicant, who is authorized and empowered to receive a bail-bond for [649]*649that amount, properly executed, and conditioned'as the law requires; which said bail-bond, when so executed and approved by said sheriff, shall be filed by him in the District Court of said Austin County.
Bail granted.