Willson, Judge.
In Scoggin’s case (6 Texas Ct. App., 546) this court, in discussing and determining the question as to the burden of proof upon the hearing of the writ of habeas corpus in a capital case, said: “The indictment against him being for a non-bailable offense, prima facie, justified his detention in prison. He undertook to show that he had a constitutional right to be admitted to bail; i. e., that the proof of his guilt was not evident. This could only be shown by exhibiting the proof. * * * * We believe that when a person is brought before a court of competent jurisdiction on a writ of habeas corpus, if it appear by the return of the papers attached that he is indicted for a capital offense, it is incumbent on him to show that he is entitled to bail; if he declines to introduce any évidence bail should not be allowed him.”
This rule was re-affirmed in Randon’s' case (12 Texas Ct. App., 145), and has not been overruled, or even questioned, in any subsequent decision of this or any other court, that we are aware of, but on the contrary, stands approved by every authority, without a single exception that we have examined, (Church on Hab. Corp., sec. 404; Vaughn’s case, 44 Ala., 417; Strange’s case, 59 Cal., 416; Springer’s case, 1 Utah, 214; Hefren’s case, 27 Ind., 87; Rhear’s case, 67 Ala., 94; Jones’s case, 55 Ind., 476; Ken[124]*124dall’s case, 100 Ind., 599; Street’s case, 43 Miss., 1; Bridewill’s case, 57 Miss., 39; Glason’s case, 75 Ala.,-; 1 Bishop Crim. Prac., sec. 363; Lynch’s case, 38 Ill., 494; Hurd on Hab. Corp., 438-446; Cooley’s Const. Lim., 380; Tinder’s case, 19 Cal., 539; Mills’s case, 3 Dev., N. C., 431; Hight’s case, 1 Morris, Iowa, 410; Holley’s case, 15 Fla., 688.)
Independent of this line of concurring authorities, it seems that the rule announced in Scoggin’s case, supra, is impliedly sanctioned and established by a fair and reasonable construction of our habeas corpus act. In his petition for the writ the applicant must allege that he is “ illegally restrained in his liberty,” and oath must be made that the allegations of the petition are true, according to the belief of the petitioner. (Code Crim. Proc., art. 144,) This allegation is an affirmative one, and a well established rule of pleading is that the burden of proof rests upon the party who holds the affirmative of an issue. He is the actor, and it devolves upon him to establish by evidence the truth of what he affirms. Article 171, Code of Criminal Procedure, reads: “If it appear by the return and papers attached that the party stands indicted for a capital offense, the judge or court having jurisdiction of the case shall nevertheless proceed to hear such testimony as may be offered on the part both of the applicant and the State,” etc., clearly indicating that the testimony on the part of the applicant—the plaintiff— shall be offered first. Article 179, Code of Criminal Procedure, provides: “The applicant shall have the right to open and conclude, by himself or counsel, the argument upon the trial under habeas corpus,” again clearly indicating that he holds the affirmative, and must establish his allegation that he is “illegally restrained in his liberty.”
Again, the very section of the Bill of Rights which guarantees bail, contains the same implication. It provides that capital offenses, where the proof is evident, shall not be bailable, but further provides that this exception 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. (Bill of Rights, sec. 11.) Our habeas corpus act provides the manner of such examination, and, as we have seen, devolves the initiative upon such examination, after indictment found, upon the applicant, not expressly, but impliedly.
The rule we are discussing seems also to be founded in reason. If an indictment for a capital offense does not prima facie estab[125]*125lish a non-bailable offense, the accused party would be entitled to bail the moment he was arrested, and the officer who would have the temerity to refuse him bail, when tendered, would be guilty of false imprisonment, and liable to prosecution and punishment for that offense, as well as liable in a civil suit for damages. An indictment for a capital offense, for all the purposes of a habeas corpus proceeding, carries with it the presumption that it is founded upon proof evident. For reasons apparent to the legal mind, no presumption of guilt arises from an indictment when the case comes to be heard upon the final trial. Then the presumption of innocence attaches and continues throughout the trial, because then the State and not the accused is the plaintiff, the actor, the party who holds the affirmative of the issue, and who must assume the burden of proving the offense alleged. A majority of the court believe and hold that the rule as stated in the Scoggin case, supra, is the correct one, and it is adhered to and reaffirmed.
All the members of the court concur in the opinion that the declarations and acts of John Alexander were inadmissible, it not being shown that applicant Smith authorized the same, or was in any manner connected therewith. This illegal evidence is not considered by us in passing upon the facts of the case.
Before passing upon the facts of the case we will consider a preliminary question which has been presented and argued with ability by counsel for applicant. In Foster’s case, 5 Texas Court of Appeals, 625, this court defines and explains the words “proof evident,” and lays down two rules by which judges and courts should be guided in determining whether or not the proof is evident. The first rule is that announced in Commonwealth v. Keeper of Prison (2 Ashm., 227), and is as follows: “A safe rule, where a malicious homicide is charged, is 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.” The second rule is that laid down in McAnally’s case, 53 Alabama, 395, and is as follows: “If 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, bail is not a matter of right.”
[126]*126These rules were subsequently quoted and approved in Beacorn’s case, 12 Texas Court of Appeals, 318; and in C'oldiron’s case, 15 Texas Court of Appeals, 464, the second rule above stated was quoted and approved.
With respect to the first rule, we are convinced that it is wrong, and should no longer be recognized as a guide. It is ably and justly criticized in Budewell’s case, 57 Miss., 39, in the following language: “A verdict of conviction where no error of law has intervened, will never be set aside unless manifestly wrong, or, as is sometimes said, if there be any evidence to support it. To say that bail will only be granted where there is no evidence showing guilt, or where the proof of guilt is so slight upon the whole testimony that a conviction would be manifestly wrong, is plainly inconsistent with the constitutional requirement that it shall be granted in all cases except where the proof is evident or the presumption great.
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Willson, Judge.
In Scoggin’s case (6 Texas Ct. App., 546) this court, in discussing and determining the question as to the burden of proof upon the hearing of the writ of habeas corpus in a capital case, said: “The indictment against him being for a non-bailable offense, prima facie, justified his detention in prison. He undertook to show that he had a constitutional right to be admitted to bail; i. e., that the proof of his guilt was not evident. This could only be shown by exhibiting the proof. * * * * We believe that when a person is brought before a court of competent jurisdiction on a writ of habeas corpus, if it appear by the return of the papers attached that he is indicted for a capital offense, it is incumbent on him to show that he is entitled to bail; if he declines to introduce any évidence bail should not be allowed him.”
This rule was re-affirmed in Randon’s' case (12 Texas Ct. App., 145), and has not been overruled, or even questioned, in any subsequent decision of this or any other court, that we are aware of, but on the contrary, stands approved by every authority, without a single exception that we have examined, (Church on Hab. Corp., sec. 404; Vaughn’s case, 44 Ala., 417; Strange’s case, 59 Cal., 416; Springer’s case, 1 Utah, 214; Hefren’s case, 27 Ind., 87; Rhear’s case, 67 Ala., 94; Jones’s case, 55 Ind., 476; Ken[124]*124dall’s case, 100 Ind., 599; Street’s case, 43 Miss., 1; Bridewill’s case, 57 Miss., 39; Glason’s case, 75 Ala.,-; 1 Bishop Crim. Prac., sec. 363; Lynch’s case, 38 Ill., 494; Hurd on Hab. Corp., 438-446; Cooley’s Const. Lim., 380; Tinder’s case, 19 Cal., 539; Mills’s case, 3 Dev., N. C., 431; Hight’s case, 1 Morris, Iowa, 410; Holley’s case, 15 Fla., 688.)
Independent of this line of concurring authorities, it seems that the rule announced in Scoggin’s case, supra, is impliedly sanctioned and established by a fair and reasonable construction of our habeas corpus act. In his petition for the writ the applicant must allege that he is “ illegally restrained in his liberty,” and oath must be made that the allegations of the petition are true, according to the belief of the petitioner. (Code Crim. Proc., art. 144,) This allegation is an affirmative one, and a well established rule of pleading is that the burden of proof rests upon the party who holds the affirmative of an issue. He is the actor, and it devolves upon him to establish by evidence the truth of what he affirms. Article 171, Code of Criminal Procedure, reads: “If it appear by the return and papers attached that the party stands indicted for a capital offense, the judge or court having jurisdiction of the case shall nevertheless proceed to hear such testimony as may be offered on the part both of the applicant and the State,” etc., clearly indicating that the testimony on the part of the applicant—the plaintiff— shall be offered first. Article 179, Code of Criminal Procedure, provides: “The applicant shall have the right to open and conclude, by himself or counsel, the argument upon the trial under habeas corpus,” again clearly indicating that he holds the affirmative, and must establish his allegation that he is “illegally restrained in his liberty.”
Again, the very section of the Bill of Rights which guarantees bail, contains the same implication. It provides that capital offenses, where the proof is evident, shall not be bailable, but further provides that this exception 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. (Bill of Rights, sec. 11.) Our habeas corpus act provides the manner of such examination, and, as we have seen, devolves the initiative upon such examination, after indictment found, upon the applicant, not expressly, but impliedly.
The rule we are discussing seems also to be founded in reason. If an indictment for a capital offense does not prima facie estab[125]*125lish a non-bailable offense, the accused party would be entitled to bail the moment he was arrested, and the officer who would have the temerity to refuse him bail, when tendered, would be guilty of false imprisonment, and liable to prosecution and punishment for that offense, as well as liable in a civil suit for damages. An indictment for a capital offense, for all the purposes of a habeas corpus proceeding, carries with it the presumption that it is founded upon proof evident. For reasons apparent to the legal mind, no presumption of guilt arises from an indictment when the case comes to be heard upon the final trial. Then the presumption of innocence attaches and continues throughout the trial, because then the State and not the accused is the plaintiff, the actor, the party who holds the affirmative of the issue, and who must assume the burden of proving the offense alleged. A majority of the court believe and hold that the rule as stated in the Scoggin case, supra, is the correct one, and it is adhered to and reaffirmed.
All the members of the court concur in the opinion that the declarations and acts of John Alexander were inadmissible, it not being shown that applicant Smith authorized the same, or was in any manner connected therewith. This illegal evidence is not considered by us in passing upon the facts of the case.
Before passing upon the facts of the case we will consider a preliminary question which has been presented and argued with ability by counsel for applicant. In Foster’s case, 5 Texas Court of Appeals, 625, this court defines and explains the words “proof evident,” and lays down two rules by which judges and courts should be guided in determining whether or not the proof is evident. The first rule is that announced in Commonwealth v. Keeper of Prison (2 Ashm., 227), and is as follows: “A safe rule, where a malicious homicide is charged, is 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.” The second rule is that laid down in McAnally’s case, 53 Alabama, 395, and is as follows: “If 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, bail is not a matter of right.”
[126]*126These rules were subsequently quoted and approved in Beacorn’s case, 12 Texas Court of Appeals, 318; and in C'oldiron’s case, 15 Texas Court of Appeals, 464, the second rule above stated was quoted and approved.
With respect to the first rule, we are convinced that it is wrong, and should no longer be recognized as a guide. It is ably and justly criticized in Budewell’s case, 57 Miss., 39, in the following language: “A verdict of conviction where no error of law has intervened, will never be set aside unless manifestly wrong, or, as is sometimes said, if there be any evidence to support it. To say that bail will only be granted where there is no evidence showing guilt, or where the proof of guilt is so slight upon the whole testimony that a conviction would be manifestly wrong, is plainly inconsistent with the constitutional requirement that it shall be granted in all cases except where the proof is evident or the presumption great. The error of the Pennsylvania rule” (the rule under consideration) “is in failing to give due effect to a verdict of conviction, or in overlooking the vast change it effects in the attitude of the party. By it the legal presumption of innocence is overthrown, all doubtful questions of fact are resolved in favor of the State, and the credibility o.r non. credibility of witnesses is conclusively established. As before remarked, where no error of law has been committed to the prejudice of the accused, the verdict will not be set aside unless the court can say that it is without evidence to support it, or that upon a review and inspection of all the evidence the finding is plainly erroneous. To apply such a test to a proceeding for bail, and to declare that it will be denied unless the relator has demonstrated that the evidence against him is of a like unsatisfactory character, is to reverse the constitutional requirement, that it shall be granted unless the proof is evident,” etc.
With regard to the second rule, it is not, as we can perceive, objectionable. It is, as we understand it, in harmony with the constitutional requirement that bail shall be granted unless the proof is evident. It is, in effect, the same rule stated as a correct one in Budewell’s case, supra, but in different language, that is, “If, upon the whole testimony adduced, the court or judge entertains a reasonable doubt whether the relator committed the act, or whether in so doing he was guilty of a capital crime, bail should be granted.” This rule applies when the case is considered on appeal, the court keeping in mind the prima facie legal presumption that the action of the trial judge was correct.
[127]*127Opinion delivered February 16, 1887.
A majority of the court are not to be understood as holding that under the operation of this rule the evidence, though conflicting, may not at the same time be evident. To the mind of the tribunal passing upon the evidence the guilt of the applicant of a capital offense may be evident-, that is, clear, strong, not admitting of a reasonable doubt, and yet there may be evidence in conflict with such inculpatory evidence. It is not all conflicting, exculpatory evidence that will have the effect to raise a reasonable doubt of guilt and destroy or impair the force of “evident proof” made by inculpatory evidence. It is for the judge or court who hears the testimony to consider the evidence as a whole, and if by the entire evidence a reasonable doubt of the applicant’s guilt of a capital offense is not generated, the proof is evident and bail should be denied.
A majority of the court, considering the evidence in this case as a whole, notwithstanding there is a conflict in it with regard to the facts transpiring at the very time of the homicide, are of the opinion that such conflict does not affect the grade of the homicide, even conceding the truth of the defendant’s testimony, and that there is no error in the judgment refusing bail. Wherefore the judgment is affirmed.
Affirmed and bail refused.