Ex parte Smith 23 Tex. Ct. App. 100

No. 2135.

Ex parte Tom Smith, Jr.

1. Habeas Corpus for Bail—Practice—Burden of Proof.—In a habeas corpus proceeding for bail after the presentment of an indictmenb for a capital offense, it is incumbent on the applicant to show that he is entitled to bail. In his application for the writ of habeas corpus he must allege under oath that he “is illegally restrained in his liberty,’’ and, as this allegation is an affirmative one, and the applicant the actor or plaintiff, the burden is upon him to maintain it in the proof. He can not rest his right to bail upon the presumption of innocence, inasmuch as the issue of which he has assumed the affirmative is determinable by the proof alone, regardless of the presumption of innocence. In his trial upon the indictment, of course the presumption of innocence obtains in favor of the accused, and, the State being then the actor or plaintiff, and holding the affirmative of the issue of guilty or not guilty, the burden of proof on that issue is upon the State. Note the collocation in the opinion of the court of adjudicated cases maintaining this ruling, and the citations from the Bill of Rights and the Code of Procedure impliedly sanctioning it. (Hurt, J., dissents.)

2. Same—Test of the-Right to Bail—“Proof Evident”—Case Overruled.—In this case the court renounces the ruling in Poster’s case, 5 Texas Court of Appeals, 625, to the effect that bail should be refused in a capital case if the judge would sustain a capital conviction found by a jury upon such evidence as that adduced before him. A better test is that announced in McAnally’s case, 53 Alabama, 495, viz: “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 will probably be punished capitally if the law be administered, bail is not a matter of right.”

3. Same—Conflict of Evidence.—Prom the fact that there is a conflict of evidence in a habeas corpus trial for bail, it does not necessarily follow that the inculpatory evidence fails to make the proof “ evident”; for it is not all exculpatory evidence that will destroy or impair that which is inculpatory, or which will raise a reasonable doubt of the guilt of the applicant for bail. The evidence is to be considered in its entirety, and if, when so considered, a reasonable doubt of the applicant’s guilt of a capital offense is not engendered, the “proof is evident,” and bail should be refused.

4. Practice in the Court of Appeals.—The trial court admitted certain inculpatory evidence which this court considers inadmissible because it was resinter alios acta, but, instead of reversing the judgment on that account, this court excludes the objectionable evidence from consideration, and upon the legal evidence affirms the judgment refusing bail.

*1016. See the Dissenting Opinion op Hurt, Judge, controverting the ruling formulated in the first headnote, and maintaining that the general rule favors the right to bail in all cases except capital cases in which the 1 “proof is evident,”—that in cases of this character the State stands on the exception and must establish it,—that the true issue is whether or not the “proof is evident” that the applicant is guilty of a capital offense, and of this issue the State has the affirmative a.nd the burden of proof;—that the indictment, even if its allegations proved anything, can have no bearing upon this issue, inasmuch as it does not allege that the “ proof is evident” of the capital offense charged;—that the presumption of innocence avails the accused in this as well as on his trial upon the indictment;—and, therefore, that the applicant is entitled to bail unless the State shows, by evident proof, that he is guilty of the capital offense charged against him. Note the dissenting opinion in extenso for an exhaustive discussion of these positions and of those announced in the opinion rendered by a majority of the court.

6. Pact Case.—See the statement of the case for evidence on which it is held that the court below did not err i disallowing bail to an applicant charged by indictment with murder in the first degree. (Hurt, J., dissenting.)

Appeal from the District Court of Travis. Tried below before the Hon. A. S. Walker.

This was the second application for bail made by the applicant, Tom Smith, Jr., who was under indictment for the murder of Israel Clemons on October 29, 1886. The indictment charged murder upon malice aforethought, and perpetrated by shooting the said Clemons with a pistol.

Applicant was a young man associated in the management of the Eaymond House, a hotel situated on Congress avenue, in the city of Austin. Clemons, the deceased, drove a one horse spring wagon for hire on the streets. Late in the afternoon of October 29,1886, an altercation arose between applicant and the deceased, at the Eaymond House, about a trunk, for which the deceased said he had been sent by the owner. Applicant would not let the deceased take the trunk, but sent if to its destination by the transfer wagon. About seven o’clock the same evening, the deceased came up the avenue in his spring wagon, passed in front of and a short distance beyond the Eaymond House, when he was met by the applicant, who came from the direction of the Eaymond House. According to testimony for the State, the applicant said, “I’ve got you now;” but according to testimony for the applicant, the expression was, “ D—n you, I’ve got you,” and was made by the deceased after he stopped his wagon and just *102as he jumped out of it on the side to which the applicant had approached. The most material conflict in the evidence seems to be as to the respective attitudes of the parties at the moment of the fatal shot. There was testimony for the State that it was fired while the deceased was in the act of getting out of his spring wagon immediately after meeting the applicant; and, on the other hand, there was testimony for the applicant that it was not fired until blows passed between the parties. Applicant is a young man of less than average stature, and the deceased a muscular man, about five feet ten inches in height.

According to the record, the State took the initiative in the evidence, and first introduced the indictment presented by the grand jury of Travis county, on November 19, 1886, whereby it was charged that the applicant, “Tom Smith, Jr., in said county and State, on or about the twenty-ninth day of October, in the year of our Lord eighteen hundred and eighty-six, did with malice aforethought kill Israel Clemons by shooting him with a pistol, against the peace and dignity of the State.” Next the State introduced the capias issued upon said indictment, and the sheriff’s return thereof, showing the arrest of the applicant on the same day as that on which the indictment was presented.

The State here closed.

The applicant commenced by introducing the evidence taken and reduced to writing at the examining trial held by a justice of the peace of Travis county. The testimony of West Stewart (who at said examining trial was a witness for the State) is the first in order. He testified that he lived in Austin, Travis county, and knew Israel Clemons, now dead, and also Tom Smith, Jr., the defendant, whom he identified and pointed out in court. In the evening of October 29, 3886, about seven o’clock, the witness saw the said Smith on Congress avenue, in Austin, about the middle of the street car track and opposite Newman & Co.’s dry goods store. He was bare headed and had a pistol in his hands. Clemons, the deceased, was standing in the street, and was between Newman’s dry goods store and said Smith, and was facing said Smith. When Smith fired the pistol he was nine or ten feet from the deceased, who, in his shirt sleeves and with nothing in his hands, was retreating backwards, though facing Smith. Witness was within about twelve feet of the defendant when the latter fired the shot, but heard neither defendant nor deceased say anything at the time of the shooting. Witness saw the defendant and the deceased about a minute before the shooting *103He had stopped in the street near them, and saw no one else in the street at the time. If others were near, they were on the side walk. The street lamps were burning brightly, and also an electric light on the east side of the avenue. Deceased stood still immediately after defendant fired the pistol. Witness spoke up and asked “what in the devil is the matter?” Deceased, recognizing witness’s voice, said: “Cousin West, come here; I’m shot.” " At that time sheriff Hornsby rode up on a brown horse, leaned over on his horse and put his arms around defendant. Witness saw the defendant put his pistol in the inside pocket of either his coat or his vest. Witness did not hear the defendant speak a word. Witness, when called by the deceased, went to him immediately and asked him where he was hit, when he replied that he did not know, but thought he was hit in Me leg and arm. He said the defendant shot him, and on witness asking him why Smith shot him, he stated that it was because a gentleman had sent him up after a trunk. Witness asked him what he said to Smith, and he replied: “We got into a squabble over the trunk. Mr. Smith said he would knock me over the head. I replied to Smith that he would not do it if we'were out in the country” (or “on the ground”—witness could not remember which). Witness then asked deceased what he was doing out in the middle of the street, and he replied that Mr. Smith stopped him,' but did not say what for. About that time Mr. Lucy, the city marshal, walked up and asked the deceased who shot, and deceased replied, “Mr. Smith.” Deceased then told witness to carry him home, and witness carried him by Doctor Swearingen’s, and” thence on home. The pistol in the defendant’s hand at the time of the shooting was either a new or a nickel plated pistol.

The cross examination of this witness (made in the examining court by the defendant) developed the fact that he was the driver of a hack, and was on his way to the railroad depot to get some passengers when he found the defendant and the deceased on the avenue, as he had stated in his testimony in chief. He was going south at a rapid gait, on the east side of the street car track. He saw defendant and the deceased a few minutes before he got to them, and he stopped on the curve of the track in front of Simon’s saloon. Deceased’s wagon was on the west side of the track, and deceased, when first seen by the witness, was on the avenue where it crosses Pine (Fifth) street. He was on the ground in front of his horse, and was nearer to *104Newman’s store than to the Eaymond house. When first seen by witness he was backing towards the foot bridge, and defendant was standing still, east of and about five feet from the deceased. Witness checked up his team when he saw the pistol. He did not hear a word from either the defendant or the deceased. He saw the pistol before the defendant fired; it looked like a new or a nickel plated pistol. Defendant did not move until Hornsby came up. Witness did not see Hornsby when he rode up, but did see him before he, witness, got to the deceased. Nor did witness notice from what direction Hornsby came, but his horse’s head was pointed north. Defendant, deceased and witness were the only persons on the street when the shot was fired, and witness saw no one on the sidewalk at that time.

The testimony of G. W. Bright, a State’s witness at the examining court, was next introduced by the applicant. Witness lived in Austin and knew the deceased, Israel Clemons. In the evening of October 29, 1886, witness saw Clemons at the International railroad depot in Austin. Witness knew of a difficulty between defendant, Smith, and the deceased, A bov named Strawder came to the depot looking for the transfer man to carry a trunk from the Eaymond House to the depot. The owner of the trunk said to the boy: “Is my trunk here yet?” and the boy answered “No, I can’t find the transfer man.” Clemons, the deceased, stepped to the owner of the trunk and said: “Mister, let me go and get the trunk.” The owner replied “Yes, d—n it, go quick.” Deceased started to his wagon to go after the trunk. John, the driver of the omnibus, started in the transfer wagon, and went to the Eaymond House after the trunk. Deceased returned from the hotel and told witness that Tom (the applicant) would not let him have the trunk. After the train came in, the deceased got into his wagon and started up the avenue, and witness' got in his wagon and drove along about fifty feet behind the deceased. As the deceased got beyond the Eaymond House, witness saw Mr. Smith making his way on the street and towards the deceased, and heard him say something to the deceased, who then stopped. At that time somebody at the Eaymond House hallooed, and witness checked his horse and looked back to see what was wanted there, and then he looked up the avenue again to where he had seen Smith, and heard the report of a pistol and saw the flash. Witness’s horse got frightened, and witness directed his attention to *105the horse, and, turning around, he went down the avenue a piece. Turning then and reaching the place where the shooting was, the witness saw Mr. Hornsby and Mr. Smith, and then went and tied his horse in front of Simon’s saloon. He then went to where the deceased was, and deceased was put into a carriage. The flash of the pistol came from where Smith was standing. Witness was at that time in front of the center of the Raymond House, and west of the street car track. Smith was standing near the deceased and on the east side of the car track where the avenue crosses Pine street. Witness could not say how far Smith was fr¿m the deceased when the pistol was fired, though he then saw Smith plainly by the light of an electric lamp in a bar room of the Raymond House. Witness at first saw no one on the street but Smith and the deceased. When he approached the corner where he hitched his horse, he saw Sheriff Hornsby and Smith standing together on the avenue. Before the shot was fired, he heard Smith say something to the deceased, but what it was the witness did not know. As he came back up the avenue he heard West Stewart ask " what the devil is the matter ?” and the deceased answered “ I’m shot.” Witness heard nothing else, and could not say whether the deceased was in his wagon or on the ground when the shot was fired.

On his cross examination the witness said that when he first saw Smith on the occasion in question, the latter was moving in a line apparently from the sidewalk at the upper corner of the Raymond House and in the direction of Newman’s store. Deceased was on the seat of his express wagon. Witness saw no one between himself and the deceased as they passed up the avenue. If the deceased said anything to Smith, the witness did not hear it. When Smith spoke to deceased, the latter stopped, and just then the witness heard some one at the Raymond House halloo, but could not say who it was or what he said. Witness did not see the deceased get off of his wagon. The last time witness noticed the deceased before the shot was fired, the deceased was on his wagon, and the next time the witness saw him was after the shot was fired and when he was being put in the carriage. Witness repeated that he did not know whether the deceased was in his wagon or on the ground when the shot was fired. Witness recognized deceased’s voice when the latter replied to West Stewart that he was shot.

The testimony of Strawther Shackleford at the examining *106trial (when he was a State’s witness) was next put in evidence by the applicant. He stated that he lived in Austin and knew both the defendant Smith and the deceased Clemons. In the evening of October 39, 1886, witness saw the deceased at the railroad depot, and also at the Raymond House. Defendant and deceased had a difficulty that evening about a trunk. Witness was sent to the depot by Johnnie Alexander, clerk at the Raymond House, to get the baggage wagon to come there for two trunks. Witness could not find the driver of the baggage wagon at the depot, and called him several times without getting a reply. Some one said he had gone to supper, and witness remarked that there were two trunks at the Raymond House to come down to the depot. The driver of the omnibus then left his vehicle, got in the transfer wagon, and started to the hotel for the trunks. Just then the owner of one of the trunks asked witness, “where in, the h—11 is my trunk?” Witness replied that he supposed it was at the hotel, as he had just been sent down for the wagon to go up and get a couple of trunks. The owner then said, “By G—d, I ordered that trunk sent down here an hour ago, and it is not here.” Clemons, the deceased, then stepped up and told the owner of the trunk that he would go and get it for him. The owner replied, “Hurry on and get it; I want to make this train.” Deceased and the transfer wagon both started for the trunk about the same time. Witness got on the transfer wagon, and the transfer wagon got to the Raymond House and was backing up to the sidewalk when the deceased drove up alongside of the sidewalk. Deceased jumped out of his wagon on to the sidewalk, and took hold of the largest trunk and rolled it down to where his wagon stood. The man driving the transfer wagon asked witness: “Why in the h—11 did you come after both of us to get these trunks?” Witness replied: “I didn’t come after both of you; I came after the baggage wagon. A gentleman, the owner of one of these trunks, sem Israel (the deceased) after it.” Tom Smith, jr., then came out and told the deceased to “give that trunk to the transfer wagon.” Deceased replied: “ Pshaw, Mr. Smith, I think I am entitled to that trunk; the gentleman, the owner of it, sent me for it."’ Smith said: “Well, that’s all right; we sent for the transfer company to come and get it.” Deceased said: “The transfer company is slow; the gentleman said he thought he was going to get left.” Smith then said: “Well, that’s all right; we told him we would send it down; so let the transfer company *107have it.” Deceased turned his head and said: “By George, I don’t think that is right.” Witness then went to the depot with the transfer wagon and both the trunks, leaving the deceased and Smith standing in front of the Raymond House. In about five minutes the deceased came to the depot and said to witness: “Smith and I liked to have had a squabble after you left.” Witness said, “You?” Deceased replied, “Yes.” Witness asked him what Smith said, and he replied: “Well, he got to talking about what he could do and what he would do, and I told him I would go anywhere with him and show him what a negro could do with a white man of his size. When I said that a lot of gentlemen who were sitting in front of the hotel laughed at what I said to Smith.” Deceased added that Smith then went into the hotel and behind the office counter and opened the register. Some one present at this conversation between witness and deceased said to the latter: “Oh, Israel; you didn’t tell him that,” and the deceased replied: “Yes, I did.” Some one said: “ Well, if you did, it was after Smith was gone.” Deceased replied: “Well, I can prove it by Mr. Swayue.”

Applicant next introduced the testimony given by Perry Scott at the examining trial, where he was a witness for the State. The witness lived in Austin and knew both of the parties to the homicide. Late in the evening of October 29, 1886, as he was coming down the avenue, on the west sidewalk, he noticed the deceased driving up the avenue in a spring wagon. Deceased stopped his spring wagon on the west side of the street car tracks, just opposite the curve made by the track which turns east on Pine street. Witness thought that the deceased’s wagon, when stopped, had just passed the north line of Pine street, where the latter crosses the avenue. Witness was then passing in front of the store immediately north of Newman’s dry goods store. At that same time the applicant, Smith, was coming from the direction of the Raymond House, and towards the deceased, and had nearly reached the deceased when the witness saw him. The next thing noticed by witness was the applicant striking at the deceased and the latter dodging. Deceased was getting out of the wagon when the applicant shot at him. Witness saw the pistol in the applicant’s hand, and saw the blaze when it was fired. He saw nothing in the deceased’s hands except the lines. When the pistol fired witness had turned down West Pine street, and did not stop, but kept on. After it fired he heard the applicant, with an oath, say: “I’ve got you, now,” *108but witness could not remember the exact language used by the applicant when he cursed the deceased.

The cross examination of the witness elicited much repetition and many circumstantial details of no other apparent significance than as tests of his accuracy and credibility. He could not say where the applicant was at the moment the deceased stopped his wagon, nor could he say why the deceased stopped. He heard neither the applicant nor the deceased say anything at that time. After deceased stopped the applicant went up to deceased’s wagon on the right hand side. Deceased dodged and ! tried to get out of his wagon on the same side as that occupied by the applicant. The applicant struck but once at the deceased, who dodged back and avoided the blow. Applicant had a pistol in his hands when he struck at the deceased. After the applicant struck at deceased, the latter tried to get out of his wagon, and when the shot was fired he had one foot on the hub of the fore wheel and the other in the bed of his wagon. Witness was then just in the act of turning down Pine street, below ¡Newman’s store. He could not see the hub of the right fore wheel of the wagon, nor could he see the deceased’s foot; but both of the deceased’s feet, when he was shot, were not in the wagon, nor was the deceased upon the ground. Witness saw no one in the street at that time besides the applicant and the deceased and a man in a buggy. When near the cotton yard on Pine street, the witness saw a man on horseback with his arms around the applicant’s shoulders. Witness recognized the deceased when the latter stopped, but did not notice how either he or the applicant was dressed, nor whether the applicant had on a hat or not.

Re-examined, the witness stated that he thought the man he saw in the buggy was a colored man, and was certain that the vehicle in which that man was coming up the Avenue when the shot was fired was a buggy.

Sheriff M. M. Hornsby’s testimony at the examining trial was next introduced by the applicant. Mr. Hornsby knew the applicant but not the deceased. Between six and seven o’clock in the evening of October 29, 1886, the witness saw the applicant on Congress avenue, between the northwest corner of the Raymond House and the southeast corner of ¡Newman & Co.’s store. Witness was sitting on his horse about the middle of Pine street, and on a line with the alley in rear of said store, when his attention was attracted to the avenue by loud talking. *109Witness saw a man coming up the avenue in a spring wagon, with his team headed north. The man was bringing his horses to. a halt, and upon stopping his wagon he jumped to the ground. At that moment the witness turned his head to see what had become of two men whom he was watching, and whose conduct he thought was suspicious, when he heard a shot fired near the wagon which had stopped on the avenue. Looking towards where the shot was fired he saw two men separating. One of the two men was dodging under the neck of the wagon horse, and another man had gone three or four steps from the wagon in the direction of the Raymond House. The latter man turned around and faced the witness, who, being by that time in front of the team, saw that the man facing him was Tom Smith, the applicant. Witness remarked to him: “If you can’t do any better shooting than that you had better give me the gun and consider yourself under arrest.” He replied: “All right, Mr. Hornsby,” and handed a pistol to the witness, remarking: “The d—n son of a bitch was about to run over me,” or words to that effect. Just as witness was taking hold of the pistol he heard some one say: “ Come here, Cousin West; I’m shot.” Witness turned to see who was shot, and just then Hal Mason rode up and witness told him to “go and see who had been shot, and how bad he has been shot.” By that time a crowd had assembled, and Mason and others remarked to witness: “There goes your man.” Witness turned and saw Smith, the applicant, some fifteen or twenty feet off, and going towards the Raymond House. Witness dismounted and followed Smith into the hotel. Witness asked Smith, in the hotel, what the row was about, and he replied that it was about some baggage. The pistol handed to witness by the applicant was a short forty-five calibre. Witness could not remember exactly how it looked, but knew it had a walnut handle, and thought, but was not positive, that it was nickle plated. Though he did not examine the pistol critically, he was satisfied that one barrel had been fired. When the shot was fired the witness was about two hundred feet from Smith, the applicant. The flash of the discharge was just expiring as witness observed it. Witness delivered the pistol to the applicant’s father, after the applicant gave bond. When the witness reached the wagon he saw no one there but the applicant and the deceased, but other persons came up immediately.

Cross examined, the witness stated that the person in the wagon jerked his team up and stopped suddenly, and immedi-

*110ately jumped out of the wagon. Witness saw a man on the east side of the wagon at the time it was stopped, and that man proved to be the applicant Smith. From where the witness was standing, on Pine street, he could not recognize either of the parties. Witness thought that the man on the ground was about six feet from the wagon when it stopped. When the man in the wagon jumped out of it as he did the instant it stopped, he and the man on the ground were brought right together—within striking distance of each other. The man on the ground was not close enough to the man in the wagon to strike him at the time the wagon stopped, and witness did not see the man on the ground make any motion to strike him. It took witness but a few seconds to ride to the wagon from where he had been standing, on Pine street. He saw no one come around Newman's store and pass up Pine street to the cotton y ard. From the time the shot was fired until witness reached the applicant and deceased, there was no one between him and them. He saw no hack near the belligerents, and did not think there was then a hack there. When he got hold of applicant’s pistol, he heard some one say: “Come here, cousin West; I’m shot,” and he turned around and saw West Stewart’s hack by the telephone pole near the foot bridge at Newman’s corner; and this was his first sight of the hack. The hack was not there when he first rode up. The man who called for “West” was behind witness, and he did not see him. The heads of West Stewart’s horses were turned up the avenue and rather towards the sidewalk. When the shot was fired, Stewart’s hack was not standing on the curve of the street car track, nor was anything or person standing there at that time. Except the wagon from which the man jumped, there was then no wagon visible by the witness in any direction. Witness’s recollection was that, after he and the applicant had got into a hack, his attention was called by the applicant to a bruised place on his face, but this may have occurred previously and while they were in the office or a corridor of the Raymond House. Applicant had a mark on his face that looked like a blow from a man’s fist, but witness would not undertake to say how the applicant got it. Except during the conversation between witness and Hal Mason, the applicant had not been out of witness’s sight or presence from the time of his arrest up to the time he called witness’s attention to the mark on his face, and not more than ten minutes elapsed between those times. Applicant had opportunity to shoot the *111deceased a second time before the witness reached him; and a quick hand with a pistol could have shot the deceased twice more before he passed around under the horse’s neck.

On re-examination by the State, the witness testified that he did not see the deceased strike the applicant. After the shot was fired, witness kept his eye on both parties until one of them dodged under the horse’s neck, and then he kept his eye on the applicant. When the deceased jumped out of his wagon he jumped towards and could have struck the applicant without witness seeing him strike. Standing where the witness was when the shot was fired, he could not see very far either up or down the avenue, but he thought he could have seen for three or four doors in either of those directions. Applicant did not have his hat on his head, and witness thought he did not have a coat on. After getting into the office of the hotel the applicant, witness thought, put on his hat and coat.

At this point the applicant, by consent, introduced the testimony of Doctor R M. Swearingen, given before the coroner’s inquest, held upon the deceased Clemons. About half-past seven o’clock of October 29, 1886, the witness examined Israel Clemons at the latter’s home on Red River street in Austin, and discovered a bullet hole through the fleshy part of the right fore-arm, and a hole entering the right side immediately within the superior process of the ileum. The course of the ball seemed downward through the muscular tissue within the pelvis, and witness did not then believe that the abdominal cavity had been penetrated by the ball. Acute peritonitis, however,.subsequently developed, and that induced the witness to think that the ball had deflected from its initial direction, and had wounded the peritoneum. Clemons died October 31, 1886, and witness believed that it was the wound in the side which caused the death.

William Collins, sworn for the applicant, testified that on October 29, 1886, he was a clerk in Alexander’s dry goods store, which is two doors above Simon’s saloon on Congress avenue. Witness was standing in the door of Alexander’s store at the time the shot was fired, and he heard the shot. No hack was then standing on the curve of the street car track in front of Simon’s saloon. Witness knew West Stewart by sight, but did not see him the night of the shooting. At the time of the shooting the witness saw no hack, but a very brief time after the shooting, say about two seconds, he saw a hack standing by the telephone pole in front of Newman’s (which is on the opposite *112side of Congress avenue from Simon’s saloon). No one was in the spring wagon when the shot was fired. The spring wagon was then on the west side of the street car track, and on the avenue about the middle of Pine street. When the shot was fired the horse attached to the spring wagon backed a little and partly turned around in an eastwardly direction. The applicant was at that time one of the proprietors of the Raymond hotel. Witness had seen the applicant at Alexander’s store without his hat.

Cross examined by the State, the witness said he did not know whose hack it was which he saw standing in front of Newman’s store. After the shot was fired he saw two men near the street car track in the middle of the avenue. Immediately after the shot one of them took two or three steps towards the Raymond House and the other man started towards the spring wagon, which was on the west side of the street car track. As soon as the pistol fired, witness looked towards the spring wagon and got a glimpse of the flash of the pistol. Witness next noticed a man riding up on a horse, and immediately thereafter two or three other men walked up to the man who had started towards the Raymond House. Quite a crowd congregated in a minute or two. Witness did not see any hack coming in the street or the avenue. There certainly was no hack on the street car curve in front of Simon’s; he would have seen it if there had been. Two or three hacks came down the avenue immediately after the shooting. When witness heard the shot and saw the two men going in different directions, those two were about six feet apart.

John Schelin was next sworn, for the applicant. He testified that on October 39, 1886, he was in the employ of Monroe Miller as driver of the omnibus. He knew the applicant by sight, and knew Israel Clemons, the deceased, and saw them in the evening of said day. While the witness was at the union depot a boy came after the baggage wagon, to go to the Raymond House for a trunk. The driver of the transfer wagon was not present, and witness got on the wagon and went to the Raymond for the trunk. Clemons came along behind witness, with his wagon, and, as witness was backing the transfer wagon up to the hotel, Clemons drove in between witness and the hotel, jumped out of his wagon, grabbed the trunk and started to put it in his wagon. Smith, the applicant, told Clemons the transfer wagon was there to take the trunk down. Clemons replied that the man sent him up after the trunk, and Smith again told him the *113transfer wagon would take the trunk down. Clemons said that, by George, the man told him to come and get these trunks. Smith told him to let them alone; that the transfer wagon had come to take them down. Clemons then turned the trunk loose, and some colored boys assisted witness to put the trunks in the transfer wagon, when witness drove to the depot, leaving Clemons at the hotel. Witness supposed Clemons was talking to Smith, but could not remember what he said. After the train came in the witness started up the avenue on his ’bus, and when he had nearly passed the Raymond House he saw Clemons, who had stopped his wagon on the west side of the street car track, near Pine street. Witness drove on up the avenue, and saw Mr. Smith going across the avenue. When Smith got right close to Clemons’s wagon, Clemons jumped out of it, and he seemed to witness to be jumping right on to Smith. Clemons and Smith looked like they were tussling. When Clemons jumped out of his. wagon his hand was lifted like he was going to strike. They were right at each other and seemed to be tussling. A pistol shot was then fired. Witness was then some thirty or thirty-five feet up the avenue from where Clemons jumped out of the wagón. His team had=moved along slowly, but he had not stopped. He supposed the pistol was fired by Smith, though he did not see either of the parties have a pistol.

The cross examination of the witness elicited little more than a repetition of his testimony in chief, with some alteration of the language. He stated that he was eight or ten minutes in going to and returning from the Raymond House to bring the trunks, and he supposed he then remained at the depot about twenty or thirty minutes, the train being fifteen minutes late. He heard no conversation at the depot between the deceased and a gentleman about a trunk. From where the witness was when the pistol fired he could see both Smith and Clemons plainly but could not see the pistol, nor did he see Smith raise his hand as if to shoot. He did not remember whether Smith was wearing either a coat or a hat.

William Stelfox, for the applicant, testified that he knew the applicant, but not the deceased. Witness’s store stands two doors north of Newman’s, on Congress avenue. He was standing in the front door of his store in the evening of October 29, 1886, when a shot was fired between Newman’s and the Raymond House. He did not know who fired the shot, nor did he see the flash of it. He was looking in a different direction when *114it was fired, and he turned and saw the smoke, and at the same time saw a delivery wagon standing in the avenue. No one was in the wagon, but there were two persons standing on the ground near it. Witness did not know who they were. He had been standing in his store door at least two or three minutes when the shot was fired, and he saw no colored boy pass down the sidewalk while he was in the door. Nor did he see any hack standing on the curve of the street car track at or near Simon’s corner, and it was his opinion that if one had been there he would have seen it, though one may have been there. Immediately after the shot a hack came down the avenue in a trot, and stopped in front of the wagon near which the two men stood. Witness saw no hack before or at the time of the shooting.

Cross examined, the witness said that when the pistol was fired there were but two persons in the street and close to the wagon, but a crowd soon came up. Witness located the shot at about the spot where the two men were standing. He saw no omnibus driving on the avenue at that time.

C. E. Lucy, for the applicant, testified that they were partners in the keeping of the Raymond House. In about the time it took the witness to run a half a block, say fifteen seconds, after the shot was fired, he saw the applicant and Sheriff Hornsby coming towards the Raymond House from where the shot was fired. In about two minutes after it was fired the applicant walked to the dining room window, turned the blinds so that the light would fall on his face, and', in witness’s presence, exhibited to Mr. Hornsby a bruised place on his face which had the appearance of having been made by a blow. Fifteen minutes previous that bruise was not on the applicant’s face. This witness and others stated that it was the habit of the applicant to go bareheaded to the stores and other places in the neighborhood of the Raymond House.

Cross examined, the witness said that the wound on applicant’s face was about an inch and a half in diameter, and was conspicuous and red.

Re-examined, witness stated that it was the rule of the hotel to send baggage to the depot by Miller’s transfer wagon.

George Strubel, for the applicant, testified that he was behind the bar in Simon’s saloon when a shot was fired on the avenue, October 29, 1886, in the evening. He started to the front door as soon as he heard the shot, and on reaching it saw West Stewart driving his hack down the west side of the avenue. *115The hack stopped right where Israel Clemons then was, between Newman’s corner and the street car track. Witness saw no hack on the curve of the street car track near Simon’s corner. He heard West Stewart twice ask, “Israel, what is the matter?” and heard Clemons reply, “I’m shot.” This was all the witness heard.

Cross examined, the witness said that when he went to the door he saw no other hack than Stewart’s, nor any omnibus or other vehicle. If any other had been there he could have seen it. He did not see Hornsby about the deceased, but saw a horse there.

Re-examined, the witness stated that the first person he saw reach the deceased was West Stewart, but he could not say that no other person had reached deceased before Stewart. Two electric lights were burning in Newman’s store, and one in Simon’s saloon at the time, and Newman’s front is nearly all glass.

All of the foregoing testimony (except Doctor Swearingen’s) was that taken and reduced to writing at the examining trial of the applicant, which was concluded before T. F. Purnell, justice of the peace, on November 10, 1886. The next evidence introduced by the applicant was the testimony taken and reduced to writing at the hearing before District Judge A. S. Walker of the first writ of habeas corpus sued out in this case. At that hearing the testimony taken at the examining trial, and already detailed, was put in evidence by the applicant, as also the testimony of several new witnesses.

James E. Lucy, city marshal of Austin, testified that the reputation of the applicant as a peaceful, law-abiding young man was good. Witness also knew the witness Perry Scott, who was a colored boy about nineteen years old, and whose general reputation for truth and veracity was notoriously bad.

Cross examined, the witness stated that he was about two blocks up the avenue from the place of the shooting when he heard the report of the pistol, and he reached that place in about two minutes thereafter. He did not see Perry Scott there. Witness asked the deceased who shot him, and he replied “ Tom Smith.” Deceased said he was shot in the leg, but did not tell the witness how it occurred.

Re-examined, witness said that he went with the applicant, in a hack, to Justice Purnell’s, and noticed a spot or bruise under *116his right eye, which looked as if it had been caused by a lick or something of that sort.

J. A. A. Riley, for the applicant, testified that in the evening of October 29,1886, he was. at Stein’s china store, on Pecan street, half a block west of Congress avenue, when some one running east said that somebody had been shot. Witness ran in the same direction, and when he reached the avenue he saw West Stewart driving his hack down the avenue on the west side of the street car track. But few seconds had then passed since witness had heard that a shot had been fired on the avenue. Witness had known the applicant about ten years, and knew that his general reputation was good as a quiet and peaceable boy and man.

Cross examined, the witness said that Stewart stopped about Pine street and turned his team around, and witness afterwards saw him come up the avenue and go out on West Pecan street, and return from there and drive off east.

C. D. Johns, for the applicant, testified that he knew the witness Perry Scott and his reputation for truth and veracity. That reputation was bad. John Cheneville, a veteran policeman of Austin, testified to the same effect. Several other witnesses testified for the applicant, and related many circumstances and incidents which they had observed on the evening of the fatal encounter, but their testimony was cumulative only, and is therefore omitted in this report.

Nelson Bennett, for the applicant, testified that he lived at Billings, Missouri, but was in Austin, Texas, the night of October 29, 1886. He went from the Raymond House to the depot to see about the train for Kansas City. Just as he got close to the depot he heard one colored man say to another: “ That white son of a bitch of a hotel man took that baggage away from me, and if I ever get a chance I will kill him,” adding» “ I’ve had it in for him for some'time.” After finding out about his train and getting his ticket, the witness returned up the avenue and passed the Raymond House to tjhe foot bridge at its northwest corner and there waited for some minutes to find a friend whom he had left at the Raymond. The first thing observed by witness was a one-horse wagon coming up the avenue almost opposite him. The wagon was on the west of the street car track, and was nearer to Newman's corner than to witness. It stopped very suddenly, as it seemed to witness. When the witness first saw the wagon the man in it was sitting down, but *117about the time it stopped he stood up, said “ d—n you, I’ve got you now,” and jumped out of the wagon on the east side. He jumped out at some one, and quite a little scuffle ensued between him and a man on the ground. Witness walked over towards the wagon, and as he got near the street car track a shot was fired, and he turned towards Simon’s saloon. A gentleman on horseback, who he learned was the sheriff, came up and arrested the smaller of the two men engaged in the fracas, and took him over to the Raymond House. Looking back to the door of the Raymond House witness saw the applicant there under arrest. The witness recognized the colored man who was engaged in the scuffle as the same one who had made the threats at the depot. Witness, when he walked out toward the wagon, could not see the attitude of the combatants when the shot was fired, nor whether they had hold of each other or not, but they were right close together. When the colored man jumped out of his wagon he had his arm raised, and his hand was on a line with his shoulder. Witness did not notice the small man until the colored man jumped out of the wagon, and then he was within a few feet of the wagon. When the colored man jumped from the wagon he was very close to the small man, but witness could not give the exact difference between them. During the scuffle they had hold of each other. A hack drove down the avenue a few seconds after the shot was fired. It was the only hack seen by the witness, and it turned in towards Newman’s corner and stopped there. Witness saw the wounded man put into the hack, but heard nothing that may have been said.

Cross examined, the witness said that he had been on the foot bridge two or three minutes when he saw the wagon coming up the avenue. If the applicant passed the witness at the comer, the latter did not see him. Witness did not know whether the applicant was bareheaded or not. Witness did not stop at the Raymond, but at the Bateman House. Witness was a printer by trade, and worked on the “Advertiser” newspaper at Billings, Missouri. The friend he was looking for was named Mortimer, who came to Austin from New Laredo, but witness did not know where Mortimer lived. Witness wrote to the applicant from Billings, Missouri, informing him of what he, witness, knew, and the attorneys of applicant sent witness the railroad ticket on which he returned to Austin. Witness wrote to the applicant from mere motives of humanity, and not because he wanted to *118get his expenses paid back to Texas, though it was understood his expenses were to be paid.

Re-examined, the witness said that he left Austin for Missouri on October 30, 1886, and did not see Smith before he left. What caused him to write to Smith, the applicant, was a telegram in the St. Louis ‘‘ Globe-Democrat ” stating that the negro had died and that Smith was not admitted to bail. A ticket and ten dollars were sent witness to Billings, Missouri, and the understanding is that his expenses here and back to his home are to be paid. He loses his time and is out two weeks wages. Much of the testimony of this, as well as of other witnesses, has been omitted because it was mere repetition or inconsequential.

F. W. Bartlett, a resident of Jefferson, Texas, and a second cousin of the applicant, was the next witness. He was night clerk at the Raymond House in Austin from May until December, 1885, and during that time the deceased, Israel Clemons, was a porter or a bell boy in the hotel. On January 30, 1886, witness was going from Houston to Galveston on the Santa Fe train, and near Hitchcock station he went into the smoking car, and while there deceased came up to him and asked where he was going. Witness replied that he was going to Galveston and thence to California. Deceased inquired why witness had quit the hotel, and whether witness had had any trouble or was mad “ at them.” Witness replied that he had had no trouble, and deceased said that “most all of them were dissatisfied and hav ing trouble with the new management,” and that Tom Smith (the applicant) had always treated him badly, and had discriminated against him, and had put the police against the boys for “ playing craps.” Witness started to go into the other car, when the deceased said: “ The dirty little white headed scamp, I will kill him the first chance I get,” and, as witness moved off, the deceased pointed to his own body and said: “I have the thing here to doit with.” Through the opening of deceased’s vest the witness saw what he took to be a pistol. Witness understood that the applicant was the person referred to by the deceased as “the dirty little white headed scamp.”

The cross examination elicted but little of any significance. Witness thought the employes at the Raymond knew him to be a cousin of the applicant, inasmuch as they must have heard him called “cousin” by the applicant and Tom .Smith, sr. Witness left the smoking car because the talk of the deceased *119was offensive to him, and he wanted no trouble with the deceased.

Reuben Johnson, for the applicant, testified that he knew both the applicant and the deceased by sight. About seven o’clock in the evening of October 37, 1886, as witness was driving in a delivery wagon down Congress avenue, he met the deceased near Newman’s store, coming up the avenue in his wagon. Witness passed within about five feet of the deceased, and when witness had got about fifteen feet off he heard the applicant call the deceased. The applicant went right up to deceased’s wagon on his right side, and a conversation passed between the applicant and the deceased, but witness could not tell what they said. Three licks passed between them, but witness could not say which of them gave the first lick. After the licks were passed the applicant stepped backward from the wagon, and the deceased jumped out of the wagon right after him, and ran right up to him. Witness could not say whether or not the deceased had anything in his hands, but they were raised up in front of him. A pistol then fired and deceased whirled and ran within about five feet of Newman’s sidewalk, and then put his hands on the front of his body and exclaimed “Oh!” and whirled back, and by the time he got about five feet towards his wagon, West Stewart rode up and asked him what was the matter. Deceased replied: “ Tom Smith shot me;” and then said: “ Some of you boys get my wagon.” The applicant had backed about ten steps from the wagon when the shot was fired. Witness did not see any other wagon or vehicle below him on the avenue at that time, and would have seen one if any was there. If West Stewart’s hack was standing by Simon’s corner when the shot was fired the witness did not see it, nor did he see Stewart himself until the latter hailed and inquired what was the matter.

Cross examined, the witness said that the applicant, when he called to the deceased, was on the sidewalk at the corner of the Raymond House, and he called loud enough for witness to hear him. When the applicant called, witness checked up and the deceased stopped still. Then the applicant, in a peart walk, or nearly a trot, came from the Raymond House corner to the deceased’s wagon, and when he reached it a conversation took place between applicant and the deceased. They talked about two minutes, but witness did not understand their words. Then the witness saw the applicant striking at the deceased with a. *120pistol. Witness could not say whether the deceased was striking at the applicant or was defending himself. Up to this time the deceased had remained in his wagon. The applicant then got back about ten steps from the wagon, and, as he walked off, the deceased jumped off his wagon, followed the applicant, got right up to him, and then the pistol fired. Witness sat there and looked at them, the applicant stood there, and the deceased ran off towards Newman’s, and got in about five feet of the sidewalk. The witness then repeated his previous statements as to what was said by the deceased and by West Stewart. He also stated that he plainly saw the space intervening between the deceased’s wagon and the Raymond House, and he saw no one standing at or near the bridge at the corner of the Raymond House. If a man had stood there for a few minutes before the difficulty, or at the time the applicant came out there, witness would have seen him. The applicant came out with his coat on but without a hat. Witness saw nothing in the applicant’s hands when the latter came across the avenue from the Raymond House, nor did he see where the applicant got the pistol.

On his re-examination, this witness said that when the licks were passing between the combatants, they were both striking “in the same motion.” Witness saw no one come on horseback before the applicant went over to the Raymond House.

In the opinion of a majority of this court, as will be observed, all testimony relating to certain acts and declarations of one John Alexander (a clerk at the Raymond House) are excluded from consideration, because there was no proof connecting the applicant with them. This objection was taken in the court below to so much of the testimony of G. H. Reynaud, T. H. Smith, L. B. Goff, L. Eck, J. C. Petmecky and Corr Lucy as related to the declarations and acts of said Alexander, who, it is to be noted, was not produced as a witness by either side. The substance of this part of Reynaud’s testimony was that he was in Eck’s pawn broker shop after six o’clock in the evening of October 29,1886, when John Alexander came in and asked for a pistol. Eck showed him one, and Alexander said: “This pistol won’t do; I want another,”—or “a forty five.” Witness did not know whether Alexander got a pistol at Eck’s or not. About fifteen minutes later the witness was at Petmecky’s gun shop, and there again saw John Alexander, who came in and said: “I want to get this pistol loaded,” or words to that effect. Mr. *121Goff waited on him and he left. Witness thought that not more than twenty-five minutes next elapsed before the shot was fired on the avenue, and perhaps not more than five or ten minutes, as he took no notice of the time.

T. H. Smith, head waiter at the Raymond House, testifying as to Alexander, said that he, witness, was in the dining room when the shot was fired, and, hearing it, ran thence to the front door, and there found John Alexander looking in the direction of where the applicant and the deceased were in the avenue. Witness stopped, and Alexander said to him: “Go on—-it’s Tom;” whereupon witness went on and found the applicant and several other people out there. At that time Alexander was clerk in the office of the Raymond House, but witness had not seen him since the preceding Sunday, and did not know whether he had ceased to be an employe of the house.

L. B. Goff testified that he was working in J. C. Petmecky’s gun store on October 39, 1886. Witness knows John Alexander, and saw him at Petmecky’s store a little after dark in the evening of said day. He had with him a forty-five calibre six shooter and came to buy some cartridges. Witness sold him six cartridges, and he put them in -the pistol, paid for them, and went out of the store. Witness was in said store when the shot which wounded the deceased was fired, and thought that shot was fired about fifteen minutes after John Alexander left the store.

L. Eck testified that he was a pawn broker in Austin, and knew John Alexander, who, in the evening Israel Clemons was shot, came to witness’s to get a pistol for Tom Smith, ji\, as he said. He got a Colt’s six shooter, which was either a forty-four or a forty-five calibre, and which the witness hired to him for Tom Smith, jr. The pistol was not loaded when Alexander took it off, and a day or two afterwards it was returned to witness by some person whom he could not remember.

J. C. Petmecky testified in substance as did Revnaud and Goff with regard to John Alexander’s call at witness’s gun store, and thought the shot was fired some fifteen or twenty minutes after Alexander left the store.

Corr Lucy testified that he arid the applicant conducted the Raymond House as partners, and John Alexander was in their employ on October 39, 1886. Alexander had not been discharged, and had worked at the Raymond House until “last Monday,” since when the witness had not seen him. The witness did not know Alexander’s present whereabouts, and had no information *122in regard to it. “Alexander and I were standing in the door on last Monday; he said, ‘let me get inside,’ and Mr. Peck came up. Peck, the deputy sheriff, hunted for him; I don’t know whether he found him or not.”

The testimony just narrated, of the last six witnesses (Lucy, Petmecky, Eck, Goff, T. H. Smith and G. H. Reynaud), is that referred to in the opinion of the majority of this court as excluded from consideration for the reason therein given.

G. H. Reynaud, however, gave further testimony, and stated that when the pistol fired he ran over to the wounded negro, and was the person who first reached him. Deceased was walking bent to one side, holding his arm close to his body. Witness asked him where he was shot, and he said in the arm and leg. Just then he hailed a hackman and asked him to take him home. The hackman said: “What is the matter?” Deceased replied: “I am shot.” The hackman said: “Who shot you?” and deceased replied: “Smith.” The hackman said: “What for?’’ and the deceased replied: “Something about a trunk.” The deceased had then got into the hack, and witness told the hack-man he had better go home with deceased as quick as he could. Witness then left the hack, and saw a man on horseback in the avenue, and a bareheaded man standing with his hand on the saddle or the mane of the horse. Witness saw no man standing near the bridge or awning at the northwest corner of the Raymond House, nor any man walk into the street and near the parties just before the shooting. He did not see the man Kelson Bennett there at all, nor anywhere previous to this trial, but he might have been there and witness not have seen him. If, however, there had been a man at the street car track, within five feet of the deceased, witness thought he would have seen him.

Kelson Bennett, whose testimony is set out in a previous part of this report, was re-called for further cross-examination, which, however, elicited nothing except an account of himself and his movements in Austin subsequent to his arrival from San Antonio in the forenoon of October 29, 1886.

Ferrin Clemons, the father of the deceased, testified that the latter did not go to Galveston or Houston in January or February, 1886. The witness was positive of that fact, and that the deceased was not away from the witness’s house, which was his home, two successive nights during the time referred to.

Sheriff Hornsby testified that he saw no person near the corner of the Raymond House, nor near the combatants when the shot *123was fired. Witness said be had given his testimony fully at the examining trial, which testimony has already been related in this report.

John Davidson was introduced and gave evidence, but his testimony was but cumulative, and is therefore omitted.

The foregoing is a much condensed statement of the voluminous evidence in the record, but it is believed that it covers every fact of any legal significance or consequence. The applicant reserved a bill of exceptions to the refusal of the court below to grant him bail when the State had made no other showing than the indictment, the capias, and the sheriff’s return of the latter; and also a bill of exceptions to the refusal of the court below to exclude and suppress all the testimony relating to the declarations of John Alexander.

Sneed, Pendexter & Burleson and Walton, Hill & Walton, for the applicant.

J. H. Burts, Assistant Attorney General, for the State.