The opinion
WOODLEY, Judge
(dissenting).
The State’s motion for rehearing was filed, submitted and argued June 23rd. June 26th being the last day of the present term it is difficult to write a full statement of my disagreement with the opinion overruling the State’s motion. Suffice it to say that the opinion is without precedent, as in the view of the writer is the conclusion that the trial court erred in denying bail.
It is regrettable that this Court should abandon the policy of refraining from stating the facts at length and of expressing a conclusion as to the sufficiency of the evidence to show appellant’s guilt; the purpose of such policy being that the trial should proceed without such prejudgment by this Court.
Since the facts have been set out at great length, I deem it necessary to state further facts and restate others which .1 consider relevant on the sole question presented by appellant’s brief: “The trial court abused its discretion in denying appellant bail,” and by the state’s answering proposition “The trial court did not abuse its discretion in denying appellant bail.”
Appellant left his home in San Clemente, California on April 9, 1965. His mother’s 1963 Thunderbird and some of appellant’s guns were found missing. The police were notified.
On Monday, April 12, appellant and his companion Angles made purchases at Buck’s Sporting Goods Store in Corpus Christi, including three five gallon fuel cans which they had filled with premixed gas and oil for a motor boat and two flounder gigs.
The witness Parrino helped place the cans of fuel in the automobile with California license plates and appellant paid for the *745 purchases with a Richfield Credit Card and signed the slip.
Appellant and his companion inquired about shotgun shells and two magazines for sporting type high powered rifles. Mr. Parrino did not have the shot they requested or the clips and referred them to “The House of Guns”, another store. He testified:
“Q. This time of year, is there anything unusual about having calls for the type of ammunition and clips these two parties were asking for?
“A. Normally, as I stated, I have been around quite a bit, this is the first call I have ever had for such rifles. I don’t recall, I have only been in this part of the country since ’61, and I retired from the service, and that was my initial call for that particular type of clips.
“Q. Now are the gun shells you stock bird shoot, duck shot?
“A. That’s right, sir.
“Q. Were the shots they were asking for larger than bird shot and duck shot?
“A. If I recall right, I believe it was.”
On Tuesday, April 13, Deputy Sheriffs of Nueces County based upon information they had received, went to Graham’s Bait Stand on the west side of the Intracoastal Canal and there confirmed the information they had that an aluminum boat with a 5 or 10 horse power motor was missing.
Robert E. Morris, employee at Graham’s Bait Stand, identified appellant as the man who came to the bait stand on the afternoon of April 12 with a dark complected boy who rented a 14 foot Starcraft aluminum type boat, paying $10 for 12 hours and signing the name John P. Angles on his book. (Ex. 21) Morris testified:
“Q. Which one of the two boys actually got in the boat ?
“A. Well, sir, this boy here was in the boat, when I went out to put the motor on, I put the motor on and went back for a couple of lifebelts, when I went back this boy was in the boat and said he didn’t know how to run the boat, I showed him how to turn the motor to get started, shoved the boat off, and he said he was going to take it off out there and get used to running it.
“Q. At the time where was the other boy?
“A. He went to the car. I looked up when I got the other boy shoved away with the boat, although may I state, when I shoved him away, I saw the fishing rods, and I asked him if he needed any bait, and he said no, he was going to run the boat around and see how to run it, he didn’t have no fishing rod in the boat, and I thought to myself, I better get the car number, which I seldom do, and I looked up and the car was leaving.
“Q. The boy with the beard was in the car and leaving?
“A. Yes, sir.”
The officers then proceeded to a point along the edge of the channel where they confirmed the information they had received. They found the boat in which were the things they were looking for and which they had received information on:
The guns, camping equipment, oil cans and other articles described in the majority opinion, including the so called Elephant Gun or Magnum which the testimony of the mother of the appellant, though dimmed no doubt by a mother’s love, identified as similar at least to guns belonging to appellant.
*746 Having confirmed the information they had received at the boat stand and at the place where the rented boat and its contents was found, the officers requested that a helicopter be sent, the purpose being “on information that we had received at first, to look for some men”:
“Q. Was there somewhere else, based on your information, you were supposed to go?
“A. Yes, sir, approximately six miles down the spoil banks of the Intra-coastal Canal.
“Q. Was that accessible to a land vehicle ?
“A. No, sir.
“Q. Was that the reason you called for the helicopter ?
“A. Yes, sir.
******
“Q. Now which direction, if you know, did you proceed in this helicopter ?
“A. In a southerly direction
“Q. Was this the direction, going in that direction, on your direction ? I mean, did you direct the pilot which way to go ?
“A. Yes, sir, I told him what we were looking for.
“Q. This was based on prior information?
“A. Yes, sir.
“Q. And I believe you stated you went out a distance approximately six miles ?
“A. Yes, sir.
“Q. Which general direction was that?
“A. Southerly direction.
“Q. And when you got out that distance, what did you first see or observe, if anything?
“A. We spotted one body in the water.
“Q. Spotted a human body?
“A. A human body in the water, a pier, and a boat tied to the pier. After we turned — •
“Q. I want you to tell me what you could see up there in the helicopter. Go ahead. I think you were going to do that but I want to be sure.
“A. After we turned into the wind, northeast wind, at that time you could see underneath the pier, we stopped at the pier, then we could see under the pier, and I saw what appeared to be two more bodies under the pier.
* * * * * *
“Q. All right. Now upon seeing those bodies in the water, as you have described, did that confirm information that you already had?
“A. It did.
“Q. That was what you were looking for?
“A. It was what I was looking for.”
The gruesome find on the spoil bank leaves no doubt that some person or persons murdered the three unarmed fishermen, one with two shots from a gun such as the recently fired 458 Magnum found in the boat rented by appellant and Angles.
Though the source of the information which led the officers to the boat stand; the rented boat and to the spoil bank where the murdered men were found is not directly shown in the record, it is clear that appellant’s companion Angles, who rented the boat and then left the boat stand in the automobile, was in custody and only a person who was at the boat stand; at the place where the rented boat was abandoned *747 and at the spoil bank could have furnished such information.
As for appellant, he was next heard from several hundred miles from the scene of the murder when his mother received a telephone call from “Bud Lauer” at Casas Grande, Mexico, and her son, the appellant, talked to her. She knew he was wanted in connection with the three killings. “It was in all the papers.” She told no one of the call except her husband. Later she proceeded to Juarez, Mexico where she saw appellant in jail.
After having been released to United States authorities who had a Federal warrant for his arrest as a fugitive from justice, appellant was arrested at El Paso on April 23, 1965 and returned to Kleberg County. His mother claimed ownership of the 1963 Thunderbird and signed receipt therefor when she received it from the District Attorney’s office in Kingsville on April 30.
Why did appellant abandon the automobile, his guns and other property and flee to the Republic of Mexico ?
Appellant and John P. Angles, who gave his address as Hollywood, California, were jointly charged by complaints sworn to and filed April 14, 1965 with the murder of Noel Little, John David Fox and Van Dave Carson.
Appellant’s counsel elicited from the witness Morris the following:
“Q. All right. I want to ask you this question, did you ask for any identification at all from the young man to whom you rented the boat?
“A. Just to write his name down on the book.
“Q. And he wrote his name down as Angles.
“A. Yes, sir.
“Q. Have you seen him since?
“A. Yes, sir.
“Q. Where?
“A. They brought him out to the bait stand when they took him down to look for the guns.”
The trial court was not without evidence from which he could conclude that appellant and Angles had no intention of returning the boat they had rented for 12 hours; that at the time appellant drove the boat off, supposedly for a trial run, and Angles drove away in appellant’s Thunderbird, they planned to and did meet later and take the gasoline sufficient for a long trip; the guns and the camping equipment out of the car and load them into the boat; Angles was taken into custody and led or directed officers to the place where they rented the boat; to the boat where they had abandoned it, and to the spoil bank where the three unarmed men had been murdered.
It should be remembered that the state was not bound to prove that appellant shot and killed either of the three men. Proof that he agreed to the murder and was present or that he for other reasons was a principal in the murder was sufficient to warrant the extreme penalty.
I would overrule the contention that the trial judge abused his discretion in denying bail and would grant the state’s motion for rehearing.
If bail is granted it should be fixed in an amount which would more likely assure the presence of the appellant when his case is called for trial.
I respectfully dissent from the overruling of the state’s motion for rehearing.