No. 5593.

#### Ex Parte James McDowell.

Habeas Corpus—Fact Case.—See the statement of the case for evidence adduced in a proceeding by habeas corpus for bail under a charge of murder, *held,*insufficient to authorize a refusal of bail.

Habeas Corpus on appeal from the District Court of Kinney» Tried below before the Hon. W. Kelso.

The relator in this case was held under an indictment charging him with the murder of one Bill, a negro. The order of the district judge, refusing bail, is set aside, and bail in the sum of five thousand dollars is awarded.

J. H. Coleman was the first witness for the relator. He testified, in substance, that the negro Bill, or “ Curly” was shot and killed at Hayne’s camp in Sutton county, Texas, some time in April, 1884. The witness, who was horse hunting, reached the camp a few minutes before the tragedy. When he rode up to the camp, he saw the relator working with a horse. Witness got into a conversation with Haynes, and while thus engaged he heard the relator tell the negro to get on the horse. The negro declined, and relator said that he would take the negro to jail or kill him. The negro retreated backwards, saying that he would not go. Relator said to him: “Curly, it has been a long time since I killed a nigger; I am going to take you. If you don’t get on that horse, or if you run, I will kill you.” Witness thought the relator was trying to frighten the negro into a surrender. Relator called upon witness and Haynes to assist in the arrest of the negro, but they declined. Relator at last sprang at the negro. The negro ran, followed by relator. He was outstripping relator when the latter fired two shots, evidently with no intention of shooting the negro. He fired his third shot after deliberate aim, and the negro fell, shot entirely through the body. Relator remarked that he did not try to shoot deceased at first and fired only to frighten him; that the negro was a horsethief and the law would justify him in killing him, and that he was going to Junction City to surrender. When the relator started to Junction *680City, after dinner, Haynes called to him to report the matter and send out the coroner and jury. He replied that he would do so, and left, saying that he was going to Junction City to surrender.

Cross examined, the witness stated that just before the negro ran, and when he said he would not go with the relator, he, the negro, said that it was the purpose of the relator to kill him as soon as they got out of sight of the camp, and that, if he was to be killed he had as soon be killed in camp as elsewhere. Haynes told the witness, within hearing distance of the relator, that the negro rode a saddle horse into his camp the night before, and told him that the relator had sent him in quest of saddle horses, and that he came to the camp, hearing of horses in that neighborhood; that he, Haynes, had hired the negro and had agreed to lend him a horse that he might take relator’s horse back to him; that relator came into camp on that morning, riding a bareback horse, threw his gun down on the negro and with an oath ordered him to hold up his hands; that the negro surrendered and relator tied him to a wagon; that the relator then retired to the tent and took a nap, and when he woke up and came out, just before witness arrived, he found that the negro had got loose from the wagon. Haynes did not say that he turned the negro loose. Haynes, against whom several indictments were pending, was now a refugee from justice.

F. Bentley testified, for the State, that he knew the deceased, and knew him to be a violent and turbulent, insolent negro. Four or five days before the killing, the negro rodé up to the house of the witness, and told witness that he wanted a horse to leave the country on. Witness declined to let him have one. Thereupon the negro became insolent and insulting. He rode at the witness as though he was going to ride over him. Witness then struck at him with a stick. The negro cursed witness, said that he would ride over any a—c1 white son of a bitch in that country; that he would get a horse somewhere to get out of the country on, but would first come back and burn witness’s house and pens. Witness then went into his house and got his Winchester. When he got back the negro was loping off in a circle. Witness fired three shots at him at a distance of two hundred yards. It was his purpose at that time to kill the negro. Two days later, which was about two days before the negro stole the relator’s horse, witness saw him lying around the relator’s camp. That camp was about sixty miles distant from Hayne’s camp *681across a dry sterile “divide.” Relator had but one saddle in camp at that time.

Opinion delivered June 24, 1887.

Three witnesses for the relator testified that the relator, since his residence in the country, covering a period of several years, had sustained a good reputation as a quiet, law abiding and honest citizen. The negro Curly was known as a quarrelsome, violent and lawless character.

No appearance for the relator.

*W. L. Davidson,*Assistant Attorney General, for the State.

Willson, Judge.

We are of the opinion that the proof of the applicant’s guilt of a capital felony is not *evident,*and that he is therefore entitled to bail. The judgment denying him bail, and from which he has prosecuted this appeal is set aside, and he is granted bail in the sum of five thousand dollars, the evidence in the record showing that the applicant is a man of very small means.

It is ordered that the sheriff of Kinney county, in whose custody applicant is detained, release said applicant from custody upon his executing and delivering a bail bond in the said sum of five thousand dollars, conditioned as the law in such cases prescribes, said bond to be approved by said sheriff, and by him returned to the proper court.

*Ordered accordingly.*