No. 5567.

#### Ex Parte Silas Hay.

Murder—Habeas Corpus—Pact Case.—See the statement of the case for evidence in a habeas corpus proceeding for bail under an indictment for murder *held*insufficient to authorize the refusal of bail.

Habeas corpus on appeal from the District Court of La Salle. Tried below before the Hon. D„ P. Marr.

The appeal in this case was prosecuted from the order of the district judge of La Salle county refusing bail to the applicant, who was held under an indictment charging him with the murder of George Hill, on the second day of January, 1887.

' The evidence is stated below in the order in which it appears in the record. The written testimony of two witnesses, taken upon the inquest, and the like testimony taken on the examining trial, were read by agreement of the parties.

The State’s witness, E. B. Knight, testified before the coroner’s inquest substantially as follows: The witness with several gentlemen was sitting in front of Davis’s saloon, in Cotulla, Texas, on the night of January 2, 1887. At about half past eight o’clock he heard three reports of a pistol. He immediately secured his pistol from behind Davis’s bar, and ran up the *586street towards John A. Kerr’s store. On the south side of Kerr’s store, and a little west of the path, he found the deceased, George Hill, lying on the ground, still alive but badly wounded. The witness asked him who had shot him. He replied: “Captain Si Hay and Frank Hall.” The witness’s brother, N. P. Knight, and others, helped the witness move the deceased to Davis’s saloon. Witness then cut the clothes from the deceased, examined the wounds, and became satisfied that he would die, and requested Mr. Hickey to take his dying statement. Hickey asked Hill if he thought he was going to die, and Hill replied that he did think so. Hickey then asked if he wanted to make a statement, and he replied that he did. Hill then said that, when he reached the foot of the steps on the south- side of Kerr’s store, on his way from Mosser’s saloon, he stumbled and fell. Captain Hay and Frank Hall then rushed out from the stairway leading to Kerr’s cellar, and ran upon him. Hay advanced with his pistol, when he, Hill, called upon him-to stop. Hay and Hall thereupon shot him. Deceased’s pistol, with five chambers loaded and one empty, was found in his hip pocket. Witness reached deceased within fifteen or twenty seconds after the last shot was fired. He saw no one upon the scene other than Hill and those who followed him from Davis’s saloon.

1ST. P. Knight, the next, witness before the inquest, testified substantially as did his brother, F. R. Knight, and in addition stated that Hill, in his statement to Hickey, said that he was sure that Hay shot him, but was not so certain that Hall fired a shot, but knew that Hall stood by Hay while the latter fired. Describing the shots, the witness declared that the last two shots, in his opinion, were fired by two different persons. They were fired almost simultaneously, with scarely a perceptible interval between them. Hill’s pistol, which contained five loaded and one empty chamber, had not, in witness’s opinion, been recently discharged.

The State next introduced the written testimony of Doctor Hargus, taken upon the examining trial. The doctor testified, in substance, that he was sitting in Mosser’s saloon when the fatal shots were fired. He heard the firing, but could distinguish but two shots. The saloon door was closed. The witness was soon called to attend George Hill, and found him in Davis’s saloon suffering from three wounds in the body, which the witness proceeded to describe and which, he declared, produced Hill’s death. Hill’s wounds were undoubtedly inflicted by some *587one who stood in front, and a little to Hill’s right. Witness could not remember that he did or did not tell Hill that he was going to die. He, however, told Hill’s friends that death was in evitable, but was unable to say whether or not Hill heard him. Hill was quite as rational as he could be under the circumstances. He told Hickey, when interrogated, that he was going to die, and in reply to the witness he said that Captain Hay shot him; that Frank Hall was with Hay, but he was unable to say whether Hall fired a shot or not, or whether he made an attempt to shoot. Witness asked him if he fired a shot; to which he made no reply. Hill told the witness that he had just stepped from the last of Kerr’s steps when he received the first shot. Witness could not remember that he said Hay and Hall came upon him from Kerr’s cellarway. He did not tell witness whether or not any words passed between him and Captain Hay at the time of the shooting. Hill lived about an hour and three quarters after he was shot, and was rational about thirty minutes of that time.

On his cross examination, the witness testified that he reached Hill about ten minutes after the shooting, and remained until he died. Every statement made by Hill concerning the shooting was made in response to inquiries. His statements to witness were made in reply to questions propounded by the witness. This witness declared that, as indicated by the wound in the shoulder, the deceased could not well have been lying prostrate when the ball that inflicted it was fired.

P. D. Hickey was the next witness for the State. He testified, in substance, that he was in Davis’s saloon when the fatal shots were fired. He heard three reports, an interval of about five seconds intervening between each of the shots. The witness had often heard a pistol fired more rapidly than those shots were fired, and knew that they could have been fired by the same person. Immediately after the last shot was fired the witness, preceded by Mont and Hath Knight, ran out of Davis’s saloon, and proceeded hurriedly up the street. Becoming convinced, however, that a tragedy of some kind had occurred, and not wishing to interfere unarmed, the witness went back to Davis’s saloon to get a weapon. Failing to get the weapon he started back towards Kerr’s store, and met Mont and Hath Knight and some one else bearing George Hill to Davis’s saloon. Hill was laid on the saloon floor and his wounds examined. Hill conversed with the witness, and appeared to be perfectly rational. *588When he had been in the saloon about twenty minutes Hill said that he knew he would die of his wounds. He did not tell witness that he wished to make a dying statement or declaration, but stated to him the circumstances of the shooting. He said that when he stepped off the stairs to go from Mosser’s saloon up town, he stumbled and observed Captain Hay and Mr. Hall at the mouth of Kerr’s cellar, and that Hay immediately shot him. He remarked in the same connection that, in his opinion, Hay and Hall would not have known him if he had not stumbled. Hill did not then know how many wounds he had in his body. When Hill first got inside of Davis’s saloon he said that Hay and Hall killed him, but when questioned about the matter he said that he did not see Hall shoot, nor did he see Hall have a pistol, but that Hall was with Hay, who did shoot. He declared positively that the shooting was not preceded by either a quarrel or fight, but that he was fired upon as he stepped or stumbled from the stairway. Hill lived about an hour and a half after he was shot, and was rational for at least half of that time. The witness saw the clothes taken from the dead body of the deceased, and knew that they contained no pistol. He also saw Captain Smith and others examining a pistol said to belong to Hill. One chamber of that pistol was empty. Witness did not examine the pistol.

Cross examined, the witness testified that all of the statements made by Hill after he was shot, so far as he heard them, were made in reply to questions. Doctor Hargus was called, and reached deceased a few minutes after the shooting, and remained with him until after his death. The witness stated that he was familiar with the place where the shooting was said to have been done. The mouth of the cellar whence, according to Hill, Hay and Hall attacked him, was about six or eight steps from the corner of Kerr’s store. “If a party was stepping off the platform or steps going south, and any one were in the cellarway, it would necessarily throw the other to the rear or west of the person going south, or under ordinary circumstances it would.” Witness could not state with any degree of certainty the distance between the steps and the cellarway. On his re-direct examination, this witness testified that he heard Hill, shortly after he was brought into the saloon, in answer to a question propounded by some one, say that he saw Hay with the pistol in his hand immediately before a shot fired, and that he then called to Hay not to shoot. This statement the witness, upon his re-cross-*589examination, said was made by Hill about ten minutes before he said that he was going to die. The witness stated that he knew at the time that it was necessary to ask him (Hall) the question if he knew he was going to die, before his statement could be used as evidence. Witness had been told by the doctor that Hill could not survive his wounds, and that the length of time he would live could not be estimated. He knew, too, that the justice of the peace had been sent for, when he, witness, questioned Hill about the shooting.

Foster Cope was the next witness for the State. He testified that, when the fatal shots were fired on the evening of January 3, 1886, he was standing on the east side of the railroad at the depot, a short distance from Kerr’s store. Upon hearing the reports of the pistol the witness and a “ranger” ran to Kerr’s store. At the corner of the store witness found Morí and Nath Knight, and one or two rangers, who had raised up George Hill, who, they said, had been shot. One of the Knights suggested that Hill be taken away, and witness stepped forward to help. As they started off with Hill he complained that something hurt his back. Witness thrust his hand under (his coat and found a scabbardless pistol in the waistband of his pants. He took the pistol from its place, and, without examining it, turned it over to John Breeding, He then told Breeding to help Knight remove Hill, and went for the doctor, whom he soon found. Witness went with the doctor to Davis’s saloon, and was present during part of the time occupied in the examination of the wounded man. Witness heard the doctor say that Hill would not live, but did not hear Hill say that he expected to die. He heard Hill, in re°ply to a question propounded by some one present, say that he was shot by Hay and Hall, but that he did not see Hall’s pistol.

Cross examined, the witness said that he was not present throughout the doctor’s examination of Hill’s wounds. He went once to the drug store to get the doctor’s instruments, and once afterwards to get medicine. Between those two trips to the drug store about twenty minutes elapsed, during which time the witness was present at the examination. When witness got back with the medicine, he heard Hill say that he saw Hay draw his pistol and advance upon him, and that he warned Hay, in effect, to stop and not to advance on him. He did not then say that he would die, or that he would not recover. Witness then went for the justice of the peace, and on his return found Hill unconscious. When the witness next saw Hill’s pistol, *590after handing it to Breeding, was when Breeding handed it to Captain Smith in Davis’s saloon. He then saw Smith and others examine the pistol. Witness was unable to state whether or not the pistol was cocked when he took it from Hill’s person. Up to the time that witness left Hill with Knight and Breeding, to go after the doctor, he did not hear Hill make any statement, nor did he hear any questions asked by any one. Hill may have been questioned, and may have made statements before witness reached him. Witness found him about ten feet from the steps leading south from Kerr’s store. Kerr’s store occupied a corner and was bounded by a platform on each of the two sides, one running east and west, and the other north and south. The former led to the cellar way under Kerr’s store. That platform was wider than the cellar way. The cellar way was at the west end of the east and west platform. A man standing in the cellar way would be behind a man passing down the steps.

W. F. Ratterree, the next witness for the State, testified, in substance, that he was in Davis’s saloon at the time of the shooting, and heard the three reports of the pistol. . The shots were fired at intervals of about ten seconds between the first and second, and about four seconds between the second and third shots. Witness was unable to say that the three shots were or were not fired by the same person, but he had seen men who could discharge a pistol that rapidly. Witness did not leave the saloon when he heard the shots, but met the party which brought Hill to the saloon, at the door, helped them with Hill, and remained with Hill until his death. Hill was first placed on the floor of the saloon and afterwards on a mattress. About thirty minutes after he was brought into the saloon, Hill » said that he could not live, and that he was bound to die. The witness could not say whether that statement was made voluntarily by-Hill, or in reply to a question. A great many questions, however, had been put to Hill by different people. After stating that he was sure to die, Hill said that he was killed by Hay and Hall, but that he did not see Hall’s pistol, and asked Breeding to do what he could for his, Hill’s, family. Hill then turned to witness and told him that while he was badly wounded he was not suffering greatly. He said, further, that Hay shot him without provocation,- that Hay advanced upon him with his pistol in his hand, and that he called to Hay: “ Don’t shoot me! Don’t murder me!” Hill lived about an hour and a half *591after he was brought into the saloon. The witness saw nothing of Hill’s pistol during that night.

Cross examined, the witness stated that Hill had an overcoat, but he could not say that he had on a small coat. Witness could not say that Hill’s declaration that he would die was made in reply to a question. While he was lying on the floor witness heard Hickey ask him if he was going to die, but did not hear Hill’s reply. There was a great deal of confusion in the house at that time, at least thirty-five people being around the wounded man. What the witness heard Hill say about the shooting was said after he was placed on the mattress. He then said that he left Mosser’s saloon to go home to bed; that when he reached Kerr’s corner he looked around and saw Hay and Hall advancing on him, and that Hay then had a pistol drawn. Witness understood Hill to say that Hay and Hall came from around Kerr’s corner, and heard nothing about the cellar way. Witness understood Hill to say that the first shot was fired from the platform, and that he stumbled or fell as he got off the last step. He did not say, as witness understood him, that the first shot was fired as he stepped from the steps. Witness could not remember that these statements were or were not made in reply to questions. Mr. Hickey, who appeared to be very much excited, talked more and louder than any one else present, and said, among other things, that Hill could make his deposition or statement as well without as with the justice of the peace. If Hickey called up witnesses, the witness did not hear him. Witness heard Hill, as soon as he was brought into the saloon, ask for Captain Smith, of the ranger force, but did not hear him say what he wanted with Smith.

J. W. McMullen, the next witness for the State, testified, in substance, that he was in Butler’s saloon when the fatal shots were fired. He heard them distinctly, but was unable to say whether or not one man could have fired the three shots. He could not himself, and he had never seen a man who could, discharge a pistol so rapidly. After a short time had elapsed, the witness went to Davis’s saloon and found Hill lying on some blankets. He knelt down by Hill, who caught his hand in both his own, and said to him: “Billy, you are a friend?” Witness replied: “Yes, George; who did this?” He replied: “Captain Silas Hay and Frank Hall; and oh! if I hadn’t stumbled I don’t believe they would have recognized me.” Hill then said that he would inevitably die, and talked a great deal about his family. *592He repeatedly said that Hay and Hall shot him, but always in reply to the question of some one. He said that he thought Hay and Hall went into the cellar, but said nothing about a quarrel in the hearing of the witness. Witness did not see the doctor when he, witness, first reached Hill, and did not think that the doctor had yet arrived. Hill, to the best of witness’s recollection, had on no overcoat when witness got to the saloon. Hill was perfectly rational when talking to witness. Witness was not with him constantly but was present when he died. Witness saw Captain Hay, the relator, at Butler’s saloon, about thirty minutes before the shooting. Frank Hall was not then with him.

Cross examined, the witness said that some time elapsed after the shooting before he went from Butler’s to Davis’s saloon. He had not then learned that Hill had been shot. The two Knight boys, Smithy, Laird, Ratterree and a few other parties were at Davis’s when the witness arrived. Ho one was talking to Hill when the witness arrived. Witness walked up to Hill and shook hands with him. Hill spoke in his usual tone of voice, but not as loud as customary, and witness had to kneel down to hear him. Witness remained kneeling by and talking to Hill about ten minutes. Ho one but witness spoke to Hill during that time, and witness asked him but two questions: “Who did this?” and “ whioh way did they go?” Witness did not hear Hill say where he was when he was shot. Witness did not go directly back to Butler’s' saloon after leaving Davis, but sent for Hill’s family, and got a horse. On his way to get the horse, he met the rangers, and told them that, in answer to his question as to which way Hay and Hall went after the shooting, Hill said that he thought they went into the cellar under Kerr’s store. Hill was in Butler’s saloon about thirty minutes before the witness saw Hay in that saloon. Hill was rational up to the time he became speechless, which was about thirty minutes before his death. After that time, when asked if he wanted water, he would bow or shake his head to indicate that he did or did not.

John Breeding testified, for the State, that he reached the scene of the shooting a few minutes after it occurred. Hill was then lying on the ground, surrounded by five or six persons. Foster Cope handed witness a short, nickel plated six shooting pistol, which the witness, thirty minutes later, showed to Captain Smith and .Lieutenant Grimes, and, a day or two later, turned over to Hill’s family. That pistol was not tampered with in any manner by witness or anybody else while it was in the witness’s *593possession. As Hill was being taken up by witness and others, witness asked him if he was much hurt. He replied that he did not think he would get well. Witness afterwards heard Hill, in reply to questions, tell several parties that he was shot by Hay and Hall.

Cross examined, the witness said that" the first question he heard asked Hill was asked by Mart Knight before Hill was moved, and before witness’s question was propounded. Like questions—as to who did the shooting—were asked both before and after Davis’s saloon was reached. The witness was immediately with or near Hill from the time he first got to him until his death, and everything that he heard Hill say about the shooting was said in reply to questions propounded by somebody. The witness kept the pistol handed him by Cope all night after the shooting, and during that time it was out of his possession only while it was being examined by Smith and Grimes, and it was then in the witness’s view. Witness did not examine the pistol, but thought that one chamber was empty. Pat Hickey took down the names of the parties present, and asked questions of Hill.

Captain G. H. Smith testified, for the State, that he commaded the company of State rangers stationed at Cotulla, Texas, on the second day of January, 1887. About eight o’clock on the night of the said day, from his camp very near the said town, the witness heard three reports of a pistol, there being considerable interval between the first and the second shots. One man could easily have fired the three shots. Witness directed one of his men to go to Kerr’s store, near which the shots were fired, and ascertain the cause of the shooting. The ranger soon returned and reported a man shot. Witness then went to Davis’s saloon and found Mr. Hill lying on the floor, wounded. He was surrounded by a number of people. Hill asked for witness, and witness asked what he could do for him. Hill replied that he was shot and would die, and that Captain Hay and Frank Hall shot him. These statements, so far as witness was concerned, were voluntary. Witness heard Hill make substantially the same statements to other parties, in answer to direct questions. Mr. Breeding showed witness a nickel plated six shooting, forty-five calibre pistol, said to belong to Hill. That pistol contained five loaded and one empty cartridges, the hammer resting on the empty cartridge. That pistol had not been discharged within several days at least. Somebody—witness could not say *594who—told him that Hay and Hall shot Hill, before Hill told him so. Witness made diligent but unsuccessful search for both Hay and Hall, but did not find them. He first saw them, after the shooting, on January 25, 1887, when they came into Cotulla and surrendered.

George W. Clark testified, for the State, that he saw both the relator and Frank Hall in Butler’s saloon shortly before the killing, but did not see them together at any time during the fatal evening. Hall was in Butler’s saloon about thirty minutes before the shooting, and Hay left that saloon about five minutes before the shooting. Witness did not see which way Hay went on leaving the saloon. On his cross examination, this witness said that be saw Hall at Mosser’s saloon just before he saw him at Butler’s. Later he met Hay ón the street, and Hay said something about wanting to go with a scouting party in search of the murderers of Sheriff McKinney, who was killed a short time before, and to that end wanted to meet Lieutenant Grimes, of the ranger force. Witness took Hay to Butler’s saloon, where they met Lieutenant Grimes. Witness introduced Hay and Grimes, and left them talking. Hay left the Butler saloon, after talking to Grimes, about five minutes before the shooting.

The State closed.

Will L. Hargus was the first witness for the relator. He testified, in substance, that he was one of the parties sent out to summon witnesses before the inquest over the body of Sheriff McKinney, who was killed some time before this tragedy. That inquest was held on or about December 28 or 29, 1886. The witness served process on Hill, the deceased, at the village of Twohig, and journeyed to Cotulla in his company. While together on that day, Hill told witness that “old Si Hay was in Cotulla; that he expected he (Hill) would have to kill him (Hay), and that if Hay made a break on him (Hill) he, Hill, would kill Tiim, Hay. When witness got back to Cotulla that night, he repeated to Hay, word for word, what Hill had said. The witness had known Hill for twelve years, and knew him as a determined man, and one in every way calculated to execute a threat.

Cross examined, the witness stated that, though he knew Hill to be a determined man, and one calculated to execute a threat seriously made, he knew him also as a remarkably peaceable and law abiding citizen. Ho one was present when Hill made the threat or statement to witness detailed „bove. Hill was *595then in custody of the witness as an attached witness before the coroner’s inquest then sitting on the body of McKinney. If Hill then had a pistol on his person the witness did not know it, but did not examine his person. Witness understood Hill to mean that if Captain Hay attempted to kill him he would kill Hay. When he was first summoned, Hill was armed with a-Winchester gun. Boeder, who was in charge of the officers collecting witnesses, told him to put the gun in a hack which the party had. Hill placed the gun in the hack reluctantly, with the remark: “I don’t like to get with you fellows without my gun.” Boeder replied: “You will not be hurt,” and Hill’s wife said to him: “You are in no danger. Hone of these gentlemen are bad men.” Messrs. Knaggs and Jordan were attached as witnesses at the same time, and were taken to Cotulla. On arrival at Cotulla Hill gave bond and was released, and was at liberty afterward., On his re-direct examination the witness said that his father and Hill had been partners in business before the killing. Witness estimated Hill’s character by his intimate knowledge of him as a man. A quiet, determined man was, as a general rule, according to witness’s experience, a much more dangerous man than a noisy, blustering man, and to the same extent much more likely to execute a hostile threat.

L. L. Hay, the next witness for the relator, testified, in substance, that he lived at Valentyne, Presidio county, Texas, and was at Valentyne on December 26, 1886, when Sheriff McKinney was killed in Cotulla. Witness and McKinney were brothers-in-law. A day or two later he read an account of the killing of McKinney, in the San Antonio Express, and started to Cotulla at once. He arrived at Cotulla on the morning of January 2, 1887. When the shooting occurred, the witness and Cobb McKinney were sitting on the railing of the cellar at Kerr’s store. They had been sitting there for some time, discussing the McKinney murder, when this tragedy occurred. Immediately before the shooting, witness saw a man step from the platform stairway at Mr. Kerr’s store, where he was met by two other men. One of those men, whom witness recognized by voice to be the relator, asked: “Is that you, Mr. Hill?” The man who had just stepped off the platform replied:. “Yes.” The relator then asked Hill a question which the witness did not understand. Hill then made a motion with his right hand, indicating an attempt to draw a pistol, and the shooting commenced. Witness and Cobb McKinney fled at once to the house of Charlie Me-*596Kinney. The man with the relator did not speak a word, but the witness took him to be Mr. Hall. The witness stated, on his further examination, that he came to Cotulla to see about the affairs of his murdered brother-in-law, McKinney. He did not know that Hill was in Cotulla until the shooting occurred. He was told before he reached Cotulla that Hill was among a number arrested as witnesses and confined in the Cotulla jail, but, on reaching Cotulla and inquiring about Hill, he was told that Hill had not yet been brought in, but would be in next day.

Cross examined, the witness stated that the relator was his father. Hill was at the bottom of the platform stair or steps when witness first saw him. If he stumbled at that point the witness did not see it. The shooting was done at short range— five or six feet. Witness and Cobb McKinney were then about thirty feet distant, but near enough for witness to see the par- , ties and recognize the relator’s voice. Hill fell at the first fire. The other two shots were fired after he fell. Before the first shot was fired Hill threw his right hand behind him, brushing the frock of his coat aside. If he got his pistol out witness did not see it. Witness did not see a pistol in the relator’s hand when he accosted Hill with the question, “ Is that you, Mr. Hill ?” He did not catch the words of the relator’s subsequent question more than clearly enough to know that it related to some remark or statement previously made by Hill. Hill then attempted to draw his pistol and relator began to shoot. When Hill “ went for ” his pistol witness started off up the street, but saw the blaze of the pistol at the first shot and the fall of Hill. The man with the relator, whom witness took to be Frank Hall, stood about five feet from Hay when the first shot was fired. “Yes,” spoken in reply to the relator’s question, “Is that you, Mr. Hill?” was the only word uttered by Hill that was heard by the witness.

C. H. (Cobb) McKinney corroborated L. L. Hay, most circumstantially, stating, in addition, that the relator’s second remark to Hill, just before the shooting, was: “I want to speak to you about a remark you made about me.” This witness thought that Hill fell at the second shot, and did not recognize the man with the relator.

J. A. Thompson testified, for the relator, that Frank Hall came to his house a few minutes after the shooting, and remained for some time. He was unarmed, so far as the witness observed.

*597Opinion delivered June 15, 1887.

David Levels testified, for the relator, that while he was in Butler’s saloon, early in the night of the fatal day, Frank Hall came in, put his Winchester rifle behind the counter, and remarked that it was cold riding. Witness talked with Hall for some time at Butler’s saloon, and. then went to Mosser’s. En route to Mosser’s saloon he passed Kerr’s store, and observed two men at the cellar railing, talking to each other. Just as he left Mosser’s saloon, about thirty minutes later, to go home, he met Frank Hall going into Mosser’s saloon. The two men were still at the cellar railing when witness passed Kerr’s store, going home from Mosser’s saloon, which he had just left. The shooting occurred a few minutes later.

John A. Kerr testified, for the relator, that he went into his store about half past seven o’clock on the night of January 2, 1887, to write a couple of business letters to go off by the early morning mail. While unlocking his door he observed at least two men at the cellar railing. The shooting occurred about thirty minutes later, just as the witness was getting ready to leave his store. W itness, while in his store, heard a number of persons passing up and down the platforms outside of his store.

*Lane & Williams*and *F. B. Earnest,*for the relator.

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

Hurt, Judge.

This is an appeal from a judgment denying bail to the relator. Upon the statement of facts brought up with the record, we are constrained to differ from the learned judge who sat upon the habeas corpus hearing below, in holding that the proof is *evident*of appellant’s guilt of murder in the first degree.

The judgment is reversed and the relator is admitted to bail in the sum of ten thousand dollars, and it is ordered that he be discharged from custody upon the execution of such bond, with good and sufficient sureties and conditioned in the terms of the law.

*Ordered accordingly.*