¶1Applicant was indicted for the murder of W. B. Todd. Upon a trial under said indictment, the *99jury having.failed to agree, a mistrial was ordered and they were discharged by consent of parties. Applicant then obtained a-writ of habeas corpus upon an application for bail, which, having been heard in term time by the Honorable J. C. Randolph, judge of the Thirty-fifth judicial district, he was denied bail and remanded to custody to await another trial. From the judgment he has appealed to this court.
¶2All prisoners are bailable “ unless for capital offenses when the proof is evident.” (Const., Bill of Rights, sec. 11.) Does a mistrial upon the disagreement of the jury as to a verdict in a capital case establish per se the fact that the proof is not evident, and that, therefore, the accused is entitled to bail?
¶3Mr. Bishop says: “ If there has been a trial before a petit jury failing to agree, and especially if there have been two such trials, that will be a strong fact moving to" the granting of bail.” (1 Bish. Crim. Proc., 3 ed., sec. 262.) In his valuable work on habeas corpus Mr. Church says: “But the court will not, as matter of course, admit to bail because the jury in a trial for murder have not agreed upon a verdict. * … Where a jury have disagreed twice upon a question of guilt, a doubt may well be raised.” (Sec. 408, citing People v. Tinder, 19 Cal., 539; Peo v. Cole, 6 Park Cr. C., 695; State v. Summons, 19 Ohio, 139; Ex parte Pattison, 56 Miss., 161; People v. Perry, 8 Abb. Pr. R., n. s., 27.)
¶4On the simple fact alone, in this case, that a trial had been had and the jury had failed to agree, we do not think applicant was entitled to bail. But, upon the evidence as exhibited to us in this record, we are of opinion appellant was entitled to bail. This evidence will not be discussed.
¶5The judgment of the court below, refusing bail, is reversed, and applicant will be admitted to bail upon his executing a bond in the sum of thirty-five hundred dollars, with good security, bond conditioned as the law directs; and, upon the execution by him of said bond, the sheriff of Eastland county having him in charge will release him from custody.
¶6The judgment is reversed and bail allowed in the sum of thirty-five hundred dollars.
¶7Ordered accordingly.