¶1OPINION
¶2These are appeals from an order of the CAninal District Court of Jefferson County denying appellants’ applications for a writ of habeas corpus and refusing the appellants’ applications for bail. Appellant Charles Elton Wilson and appellant Chris Phillip Kibbe both stand indicted for the offense of capital murder.
¶3The Constitution of the State of Texas, Art. 1, Sec. 11, and the Code of Criminal Procedure, Art. 1.07, both provide that all prisoners are entitled to bail except those charged with a capital offense “when the proof is evident.”
¶4The term “proof is evident” means that the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense of capital murder has been committed; that the accused is the guilty party; and that the accused will not only be convicted but that the jury will return findings which will require a sentence of death. Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr.App.1974); Ex parte Forbes, 474 S.W.2d 690 (Tex.Cr.App.1972); Ex parte Short, 462 S.W.2d 281 (Tex.Cr.App.1971); Ex parte Colbert, 452 S.W.2d 454 (Tex.Cr.App.1970); Ex parte Collins, 168 Tex.Cr.R. 500, 330 S.W.2d 194; Ex parte Thrash, 167 Tex.Cr.R. 409, 320 S.W.2d 357; Ex parte Washburn, 161 Tex.Cr.R. 651, 280 S.W.2d 257; Ex parte Roberts, 151 Tex.Cr.R. 547, 209 S.W.2d 361; Ex parte Suger, 149 Tex.Cr.R. 133, 192 S.W.2d 159; Ex parte Shults, 127 Tex.Cr.R. 484, 77 S.W.2d 877. See generally 7 Tex.Jur.2d, Rev., Part 2, Bail and Recognizance, Secs. 16-22.
¶5The burden of proof is on the State to establish that the proof is evident. Ex parte Sierra, supra;Ex parte Forbes, supra;Ex parte Short, supra;Ex parte Paul, 420 S.W.2d 956 (Tex.Cr.App.1967). The State must introduce evidence that the jury would not only convict the accused, but would return findings which would require a sentence of death. Ex parte Sierra, supra; see Art. 37.071, V.A.C.C.P.
¶6It is the firmly established policy of this Court to refrain from setting out the facts in detail or commenting on the sufficiency of the evidence since the case has not yet been tried on the merits. Ex parte Sierra, supra;Ex parte Paul, supra.
¶7The decision of the trial judge that the proof was evident is entitled to weight on appeal, but it is the duty of this Court to examine the evidence and to determine for ourselves if bail was properly denied. Ex parte Hickox, 90 Tex.Cr.R. 139, 233 S.W. 1100.
¶8The record before us reflects that the body of Frank Graffagnino was found buried in a shallow grave in a wooded area of Jefferson County in mid May, 1975. An examination of the body disclosed bruises, a fractured leg, and fractured ribs. The cause of death was suffocation resulting from the aspiration of the stomach contents.
¶9The State introduced evidence that would link the appellants to the death of Frank Graffagnino. The record could circumstantially support the State’s allegations of kidnapping. Motive is shown by an affidavit that indicates that the deceased was having an affair with the wife of the appellant Kibbe.
¶10In order for the sentence of death to be imposed, there must first be a conviction of capital murder. The State must then prove beyond a reasonable doubt that: (1) The conduct of the accused that caused the death of the deceased was committed deliberately and with the reasonable expectation the death of the deceased or another would result; (2) There is a probability that the accused would commit criminal acts of vio*312lence that would constitute a continuing threat to society; (3) If raised by the evidence, that the conduct of the accused in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975).
¶11We have carefully reviewed the record before us and cannot conclude that the proof is “evident” that the jury would answer the required questions in the affirmative as required by Art. 37.071, V.A.C. C.P.
¶12The judgment of the trial court in denying bail to the appellants is reversed. Appellant Charles Elton Wilson is granted bail in the sum of $20,000.00. The appellant Chris Phillip Kibbe is granted bail in the sum of $40,000.00.
¶13Opinion approved by the Court.