[No. 5109.]

#### Ex Parte Albert Bryant.

Habeas Corpus—Evidence.—See the statement of the case for evidence *held*insufficient to support a judgment refusing bail under a charge of murder.

Habeas corpus on appeal from a judgment refusing bail rendered by the Hon. T. M. Paschal, judge of the thirty-eighth judicial district, in and for the county of Bandera. The applicant was held under a capias charging him with the murder of August Reitzer. The bail fixed by this court is twenty-five hundred dollars. •

Rufus Evans was the first witness for the applicant. He testified that he lived in Medina county. The applicant stopped at the witness's house a few minutes on the morning of November 10, 1885, and said that he was on his way to Bandera to sell some corn. He left, going in the direction of Eckhart’s house. Within a few minutes, the witness, who was then in his field, heard some one riding along the road in a lope. He next saw one man on horseback, standing on the top of the hill. That man was presently joined by two others. The three stood together for a short while, evidently in conversation, and presently came towards the witness’s house as fast as their horses could carry them. When they got near enough for witness to see them well he recognized them as August Reitzer, Christian Eckhart, and Fritz Eckhart. They passed the witness at a short distance, a small thicket of brush intervening. Reitzer rode in advance, *640with the two Eckharts abreast. Chris Eckhart spoke to Reitzer, but witness did not understand what he said. Reitzer replied: “G-d d—n it, we’ll get him.” Witness then called to Fritz Eckhart: “Hold up, Fritz; what is the matter with you fellows?” Fritz replied: “Good morning, Mr. Evans,” and went on. Witness went immediatelv to his house, asked old man Joiner, who was staying with him, what was the matter with “those fellows,” and directed Joiner to saddle his horse for him, so that he might overtake the parties, if possible, and pursuade them to come back. Witness got on his horse and rode as rapidly as he could in the wake of Reitzer and the Eckharts. When witness reached a point within a half mile of John Bryant’s house, he saw dust on the road ahead of him. He spurred his horse to his utmost speed, and, when he got to a point within three hundred yards of Bryant’s house, he saw Reitzer, Chris, and Fritz Eckhart, in the act of crossing a small creek, over a road that turned from the main road to Bryant’s house. He called “hold up, boys! ” but they paid no attention to him.

The shooting began just as witness got to the creek. He turned down the creek, fearing to go up the hill towards the house for fear he would be struck by stray balls. Eight or nine shots were fired in the time that witness employed riding down the creek and up the hill to a safe point. Reitzer and Chris Eckhart, when witness first saw them after the shooting commenced, were behind the body of a prostrate tree, and Fritz Eckhart was behind the upright roots of the same. John Bryant was between his two houses at the southwest corner of his hail. Reitzer and Chris Eckhart held their first position between one and two minutes after witness first saw them, and then retreated south, keeping a tree between them and John Bryant. The witness called to them, asking: “Boys, what is the matter?” Reitzer, who was holding up his right arm, replied as witness understood him: “Rufe, I think I am shot.” Witness then loped up the creek towards Bryant’s house. Mean while Chris Eckhart found shelter behind a cluster of small elm trees, and Reitzer behind a small lone live oak. A moment later a shot was fired, as well as witness could tell, by Reitzer, which was replied to by John Bryant, and Reitzer fell. As witness approached he called to John Bryant: “Don’t shoot me.” John Bryant replied: “Give Albert some water.” Just at this time a shot was fired by Chris Eckhart, and witness jumped from his horse and ran into the house, where he found the appellant, Al*641bert Bryant, lying on the bed. Albert said: “Oh Rufe! for God’s sake, give me some water; that is the last thing you can do for me.” Witness took the canteen and ran down to the spring. While witness was on his way to the spring he heard two sho+s fired almost together. Another was fired while witness was filling the canteen. The witness then returned to the house, raised Albert Bryant’s head, and gave him a drink of water. While thus engaged, it was the witness’s recollection that another shot was fired. Witness gave Albert three drinks of water at intervals of one minute. When Albert had taken the third drink of water, John Bryant appeared at the door and asked: “How is my son; is he dead?” Witness replied that he had just given him water, and asked him where the other fellows were. He replied that two of them were “down there below the house,” and that he was going to Castroville to surrender. Witness told him he had better not leave until he, witness, could go home and send for a doctor. Albert said: “Eor God’s sake don’t leave me here alone.” John Bryant then said that he would remain at the house until witness could go home and return. He admonished witness to hasten, and witness left.

About two hundred and fifty yards from Bryant’s house witness met Johnny Johnson going towards that house. Witness told Johnson that Albert Bryant was wounded, and asked him to go to the house while he was gone home for help. When witness got home he sent his daughter to Mr. Robinson’s house to have a doctor dispatched for. Witness then hitched his horse to a two wheel cart, and about the time he got through, John Eckhart came to his house, and witness said to him: “John, I have got some bad news for you.” John Eckhart then went on towards Bryant’s house. Witness’s wife and Mrs. Joiner got in the cart with witness, and witness drove to Bryant’s house as rapidly as he could. About three quarters of a mile from Bryant’s house, he overtook John and Fritz Eckhart, who asked to ride. Witness told them that his cart would barely support the weight it was then carrying. John Eckhart then had a double barrelled shot gun. John Bryant was no where to be seen when witness and his party reached the house. Witness first went in to see how Albert Bryant was getting along, and then he and Johnny Johnson, and, he thought, his wife, went down to see to the other parties. They found Chris Eckhart and August Reitzer dead. Reitzer lay on his face, his Winchester rifle near and west of his body. Chris Eckhart’s body lay about four steps south from *642Reitzer’s. Eckhárt’s gun lay east of the body. Witness told John Johnson to take Reitzer’s gun to the house, and help him preserve the peace. On arrival at the house, witness examined Reitzer’s gun. He found a cartridge partially caught in the barrel. He removed it, raised the lever, and threw another cartridge into position from the magazine. John and Fritz Eckhart passed the house and went to the dead bodies. John Eckhart soon returned and got on a horse which belonged to some one of the Eckharts. Witness asked "him to give him the gun he still had. Witness and old man Joiner then went down to where the two dead bodies lay. Fritz Eckhart was there. Witness had been at the bodies but a few minutes when he saw John Bryant approach the house from over the hill. He then hastened to the house and and got John Bryant to put his gun down.

Hear the roots of the fallen tree the witness found the hulls of two short rim-fire Winchester cartridge shells. At the foot of the tree behind which Reitzer sheltered himself for awhile, the witness found one center-fire cartridge shell. He found another of the same description near Reitzer’s body, He found two or three center-fire shells near the house where John Bryant stood. He saw where a' bullet struck the eighth log of the house at the south end. That ball was fired from behind the lone live oak. He saw also where a bullet passed out at the crack between the seventh and eighth logs, from the inside of the house, which bullet ■ must have been fired by either John or Albert Bryant. Another bullet struck the north room door, glanced to, and. struck the fire place about two feet above the floor. Albert Bryant said that he thought he was shot by some one from the west part of the house. He said that he drew his pistol with his left hand and went to the west door, but could see no one.

Cross-examined, the witness stated that he testified upon the examining trial of John Bryant, at Quihi. John Bryant was charged with the murder of August Reitzer and Christian Eckhart. Witness did not testify on that trial that only three shots were fired in the fight, but he did testify that he saw only three shots fired. Fifteen or sixteen shots in all were fired, but witness saw only three of them fired. Witness did not see John Bryant when the shooting began, nor did he see Chris Eckhart when he was killed. He saw John Bryant fire his gun, and saw August Reitzer fall, from which he concluded that John Bryant killed him. When shot, August Reitzer was stooping behind a small live oak tree, with a Winchester gun in his hand. He was *643about ninety yards from Bryant’s house, around which there was no fence. John Bryant, when he fired the shot which the witness saw, was standing at the south west corner of the hallway between the two apartments of his house. John Bryant, after the shooting, told witness that when Reitzer and the two Eckharts came to the house, Reitzer approached it from the south east, Chris Eckhart from the south, and Fritz Eckhart from the west. He said that Albert was wounded when he got him in to the house. Albert then handed him the gun, and said: *“*Pa, kill them if you can] they have killed me.”' He said that when he first saw Reitzer he, Reitzer, was. peering into the house, with his gun in his hand, as if looking for a chance to shoot] that he went out and fired at Reitzer, and Reitzer retreated to the trees; that Reitzer and Chris Eckhart then took refuge behind the fallen tree and fired several shots at him, and that he fired one shot from his pistol at Reitzer. He said that when the three parties first came to the house they came together, over the road leading to the west of the house from the creek. He said that Albert was wounded before he saw Reitzer looking in to the house. He showed witness a point about eighty yards distant from the house where he said Reitzer was standing when the first shot was fired. John Bryant did not say that he did, or did not, kill Reitzer. Reitzer’s gun was a. center-fire Winchester rifle, and it was in his hands, pointed towards John Bryant, when he fell dead. Chris Eckhart’s gun was a rim-fire Winchester rifle, the stock broken nearly off. Witness did not examine Reitzer’s wounds. Chris Eckhart was behind a clump of small elm trees when witness last saw him alive. The killing occurred on Bryant’s ranch, in Medina county, Texas, about eleven o’clock in the morning. Sheriff Hamilton arrived on the scene of the killing about three o’clock, arrested John Bryant, and took him to Bandera.

. Re-examined, the witness said that when Reitzer and Chris and Fritz Eckhart passed his house going towards Bryant’s house, they rode very fast, and were apparently very much excited-They turned from the road to Bryant’s house, after crossing the creek in a body. When witness got to the creek and saw the' parties behind the fallen tree, which was about the time the firing commenced, he saw a gun barrel lying across the tree pointing towards Bryant’s house. If Albert Bryant had a dog with him when he came to the witness’s house on that morning, the witness did not see it. Witness, Reitzer, and Chris Eckhart *644were on good terms. John Brya,nt’s reputation was that of a quiet, peaceable man, who attended strictly to his own business.

W. N. Joiner testified, for the appellant, that he lived with Mr. Rufus Evans at the time of the killing of Reitzer and Eckhart. Albert Bryant came to Evans’s house on that morning, and said that he was on his way to Bandera to sell some corn, and that he was going by Eckhart’s to pay John Eckhart a debt of two dollars. When he left, Mr. and Mrs. Evans went down in to their field. After a time Albert Bryant came back, riding very fast; dismounted, ran in to Evans’s house, secured Evans’s gun, remounted his horse and continued his flight towards his father’s house. Within a few minutes Reitzer and Chris and Fritz Eckhart came by, riding as fast as their horses could take them. Reitzer asked witness which way Albert Bryant went. Witness told him, and he and the Eckharts loped off in the direction taken by Albert Bryant. Mr. Evans soon came up to the house, and witness told him what had happened, and advised him to pursue the parties and prevent a difficulty. Mrs. Evans likewise advised as did the witness, and Mr. Evans loped off after the parties. Evans returned after a time and reported that Albert Bryant was wounded and Reitzer and Chris Ecichart killed. He said that he failed to reach them in time to prevent the shooting, and otherwise gave witness substantially the same account of the shooting that he detailed on the stand. Evans had no arms on his person when he went, nor when he returned from Bryant’s house. When witness got to Bryant’s house, he found the dead bodies of Reitzer and Chris Eckhart lying about one hundred yards south of Bryant’s house. Albert Bryant was lying on a bed in the house, wounded. Mr. Evans and Fritz Eckhart were with the dead bodies. Witness and Fritz cut brush to shade the bodies. Mr. Evans shortly came to the bodies from the house, and about that time John Bryant came to the house, over the hill, from an easterly direction. Fritz Eckhart seemed to fear that John Bryant would shoot him. Evans told Fritz to go to the house and tell old man Bryant to put down his gun. Witness promised Fritz to stay with him, being satisfied that old man Bryant would make no effort to hurt him, Fritz, unless attacked. The witness testified substantially as Evans did with respect to the cartridge shells, bullet marks, guns, etc. Evans and Fritz Eckhart were evidently on friendly terms. Evans’s attempted interference was as a peacemaker.

John Bryant testified for the appellant, as follows: "‘The first *645I heard, some horses dashed up around the house. I was lying on the cot at the time. Albert stepped to the door and said to me: ‘ Here they are now, pa.’ I got up and started to the door, and heard Albert say: ‘August Reitzer, what do you want?’ I did not hear August’s answer, nor do I know that he answered at all. As I stepped to the door they were down off of their horses,—that is, August Reitzer, Christian, and Fritz Eckhart. Fritz was at the west end of the hall, and August and Christian at the south end. When I got to the door, Fritz was in "front of the west end of the hall, Christian was standing still at the south end of the house, August was walking around the east end of the hall. Albert was standing about mid way of the hall, with a single barreled shot gun in his hand, the breech on the floor. He picked up that gun and stepped out of the room when I first heard the horses. I stepped up near him, and he said: ‘ Here, pa, take this,’ handing me the gun, with the breech still on the floor. I took hold of it with my right hand. Reitzer was then coming around the south end of the house, with his gun at ‘a ready,’ except that the muzzle was lowered at an angle of forty-five degrees. Albert said: ‘Lay down that gun, August.’ August replied: ‘By G—d, I won’t do it.’ At that very moment Christian Eckhart fired through the crack of the south room, the ball passing through the cracks of both walls. The house was made pen fashion, of notched logs, and there was no ‘ chinking ’ or plaster between the logs. I saw Christian fire that shot, and Reitzer fired immediately afterwards. I then stepped to. Albert’s side, and Reitzer stepped behind the corner of. the house. I then advanced a step or two, when Reitzer came around the corner of the house, and I shot him in the neck with small shot. • He and Christian Eckhart then walked to a fallen live oak tree on the south side of the house.

“When I next saw Albert he was standing on the west end of the hall, facing the north room, holding his pistol in his left hand. He said: ‘Pa, they have killed me. They have shot me through above the hips, and broken my arm. ' I think Fritz shot from the corner of the house or through some of the cracks.’ I went to him and told him to get in the house or they would kill him yet. I got behind him then and helped him in to the house. He still had his pistol in his left hand. I got him in to bed, when he handed me the pistol with his left hand, and said: ‘Take this, pa, and kill them if you can; they have killed me.’ I took the pistol and walked out into the hall between the rooms, when *646Eeitzer and Chris Eckhart fired at me from behind the fallen live oak, through the cracks of the south room. The fallen live oak was about thirty yards from the house. I then stepped to the north wall of the south room and fired one shot from the pistol, through a crack, at Eeitzer. I think four shots were then fired at me, one of which struck the log immediately under my pistol. I saw that the pistol had no effect, and said, speaking to myself: ‘Where is my Winchester?’ Albert said: ‘Here it is.’ And I walked into the north room, and Albert, who was standing by his bed, handed it to me with his left hand. I threw four or five cartridges into the magazine and walked to the corner of the south room, when a shot was fired at me either by Christian Eckhart or August Eeitzer; I did not see which. I laid my gun on the end of a log projecting from the corner of the room and fired at Eeitzer, and he fell. Mr. Eufus Evans came up just about that time, or perhaps, a little before. I recollect telling him to give Albert some water, and that they had killed Albert. I then noticed that Eeitzer raised up, and thinking he was reaching for his gun, I said to him: ‘6—d d—n your soul, you have killed the last child I’ve got,’ and fired at him again, and I saw him move no more. Christian Eckhart then fired at me, and I shot him. That ended the fight, and I went into the house and asked Evans how Albert was.

“I saw nothing of Fritz Eckhart after the shooting commenced, my attention being taken up by the other men. I do not know where Fritz went to, .or what became of him. Between the time that Albert was shot and I put Mm in to the room, and the time when I reached the hall from the room with my Winchester, there was ample time for August Eeitzer and Christian Eckhart to leave my premises and escape. They had ample time to escape before I fired at them through the crack with the pistol, after I took Albert into the room. They could easily have escaped unharmed from the live oak log, after I started to get my Winchester. Thus they had two good opportunities to leave my premises. I heard more shots than I saw fired, and have spoken only of the shots I saw fired. The shooting occurred on my place— on the survey which I then owned and resided upon. Neither Beitzert nor Chris nor Fritz Eckhart, said any thing about having process to arrest any person; nor did they say that they had come to my residence for the purpose of arresting any body, or with authority to arrest any body; nor did they call upon any body to submit to arrest. Albert had been at home between five and ten *647minutes when they arrived. Albert was in the room where I left him when Eeitzer and Christian Eekhart were killed. I left him standing by the bed, and when I went back into the room he was lying in bed. He was shot in the right and left sides, and his right arm was broken. I only saw Albert fire eñe shot, and it had no effect that I could discover. Albert did not kill either Eeitzer, or Christian Eekhart.” The applicant closed.

Fritz Eekhart testified, for the State, that he was a brother of Christian Eekhart, deceased, and a brother-in-law of August Eeitzer, deceased. The difficulty in which Eeitzer and Chris Eekhart were killed on November 10, 1885, commenced in the Eekhart field, in Bandera county. On the morning of that day the applicant came to the witness’s brother Chris, then in the field owned and cultivated jointly by him and the witness. Witness, who was then facing them, saw them shake hands. Witness turned at the turn row, and was ploughing back, when he heard a shot fired. He looked back and saw the applicant shoot a second time at Chris. The horses attached to Chris’s plow stampeded, and witness ran to catch them, meeting his brother just as he reached the horses. He asked his brother what the shooting meant. Chris replied that the applicant rode up to him and asked where-his brother John was; that he replied that John was down in the field some where, ploughing; that applicant then said he owed John a little money and wanted to pay it, and asked him, Chris, if he knew the amount; that he told applicant that he knew nothing about it, and that if he wanted to settle with John he had better go to him; that applicant then said John had marked some of his hogs; that he replied that -he had nothing to do with John and his hogs; that applicant then got mad, and said he would prosecute both him, Chris, and John, foi; marking his hogs; that he, Chris, then laughed at applicant, and told him he had nothing to do with his pigs, and that applicant then drew his pistol and fired upon him twice, and rode off as fast as he could go. Witness saw the applicant running away after the second shot. Chris then said that he was going to try to take Albert to Bandera before he got home, and asked if witness would go with him to help him arrest applicant. Witness agreed to go.

While saddling the horses, witness and Chris saw August Eeitzer riding rapidly to the top of a hill, where they joined him. They told Eeitzer of the shooting, and Eeitzer agreed to go with them and arrest applicant. Eeitzer rode forward in advance, *648Christian next, and witness brought up the rear. The parties went to Bryant’s house, and when Reitzer rode around the south end of the house, old man Bryant, with a single barreled shot gun, and applicant with a pistol in his hand, were standing in the hall. Applicant covered Reitzer with his pistol, told him to drop his gun, and fired at him, old man Bryant firing upon Reitzer at the same time. Reitzer, at that time, had not checked his horse, nor did he have his gun out of the scabbard. Witness was standing west of the house when those two shots were fired. He instantly turned his horse and rode to a point behind the hill, some thirty or forty yards from the house, and sought shelter behind some bushes and small trees. Some ten or twelve shots were then fired; the witness heard the applicant crying. Witness next saw Mr. Rufus Evans running towards the house from the creek. Evans ran in to the house, and about thirty minutes later, out of the house and down to the spring, and then back to the house. No shots were fired while Evans was going from the house to the spring, and from the spring back to the house. About the time that Evans got back to the house witness heard his brother Chris say: “Come on, boys; let’s go.” He then saw Reitzer and Chris dodge from the house and run. When they got about ninety yards from the house John Bryant opened fire on them. August Reitzer fell. Chris, who was about four yards ahead of Reitzer, looked back; another shot was fired, and he fell. Witness then left.

Nothing was said to applicant when the parties reached the house. Applicant was the first party to speak, ordering Reitzer to drop his gun, and firing on him at the same time. Old man John Bryant fired at the same time that applicant did. Chris was then at the gable end of the house on his horse. Reitzer’s back was towards the house when he was shot. Witness made no examination of the wounds on either body, but saw a bullet hole in Chris’s back, just behind the shoulder. The feeling between Reitzer and the Bryants up to the shooting was friendly. The purpose of the visit to Bryant’s house was to arrest Albert Bryant for. shooting at Chris Eckhart. Applicant and his father were standing in the hall, armed as described, when the parties reached the house. Neither the applicant nor his father warned the witness’s party off, nor told them not to enter upon the premises.

Doctor E. L. Sharpe testified, for the State, that Reitzer’s body .showed three wounds. The first, on the neck and right shoulder, *649was made by small shot from1’a shot gun. The second, by a single ball, which entered at the lower margin, on the posterior side of the arm pit, and passed out about two inches below and to the left of the left nipple. Another ball entered about three inches below the *ileo.*It did not pass out of the body. Eckhart’s body had one shot gun wound, about five inches from the spinal chord, on the right side.

*John A. & N. 0. Green*and J. *A. Green, jr.,*for the applicant.

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

Opinion delivered June *25,*1886.

Willson, Judge.

We have no hesitation in determining from the evidence, as it is presented to us, that the applicant is entitled to bail, and that the amount of such bail should be fixed at twenty-five hundred dollars.

It is therefore considered that the judgment of the Hon. T. M. Paschal, district judge, denying the applicant bail, be and the same is reversed, and the applicant is granted bail in the said sum of twenty-five hundred dollars, and upon his giving such bail in the manner and in accordance with the requirements of the law, the officer having him in custody will release him from such custody.

*Ordered accordingly.*