No. 6502.

#### Ex Parte George and John Hanson.

Habeas Corpus.—Fact Case.—The relators were charged jointly by indictment with the murder of J. D. Hunn, in Navarro county, Texas, on the sixth day of November, 1888. They sued out jointly a writ of habeas corpus for allowance of bail. Upon the hearing of the writ bail was awarded the relator John Hanson in the sum of three thousand dollars, and was denied to the relator George Hanson. This appeal is jointly prosecuted by the relator John Hanson to secure reduction of the bail allowed below, and George Hanson for an allowance of bail. Upon the evidence adduced on the hearing (for the substance of which, see the statement of the case), the judgment is affirmed as to John Hanson, and reversed as to George Hanson with an award of bail in the sum of five thousand dollars

Habeas Corpus on appeal from the District Court of Navarro. Tried below before the Hon. Rufus Hardy.

*592The syllabus states the nature of the case.

C. J. Hanson was the first witness for the relators. He testified that he was the father of the relators, who were brothers. The relators lived with the witness on his place in Navarro county, between the towns of Corsicana and Purdon. Witness’s residence was situtated about one hundred yards from the Corsicana and Waco wagon road, known as the “cow-head”" road. Munn lived in a house situated on the opposite side of the said road, about one hundred and'fifty yards from it, and about three quarters of a mile distant from witness’s house, toward Corsicana. In going from witness’s house one would pass Munn’s house, and in going from Munn’s house to Purdon, traveling the said road, one would pass witness’s house. When going to Purdon in a vehicle Munn always traveled the road *via*witness’s house, but when he traveled to Purdon on horse back he generally went the shorter route through Slaughter’s field. Witness’s cotton patch was in the back part of his field, between eight hundred and a thousand yards distant from the house.

Munn was killed on the evening of November 6, 1888,—the day of the presidential election. Munn and the witness were enemies at that time, and had been for a year, but there had never been a personal difficulty between Munn and either of the relators. Witness and Munn had a personal collision in Corsicana, about three weeks before, in the course of which Munn knocked the witness down with an ax handle, slipping up behind witness to do so. The witness was picking cotton in his cotton patch on the morning of the fatal day, and saw Munn when he passed the field on that morning in company with his friends, Thweatt and Simpson, going towards Purdon. One of those men left some election tickets at witness’s house. About an hour later the witness hitched his horse to his buggy and went to Purdon to_ attend the election and vote. He went by the house of old man Barnes, and got Barnes to go with him as a sort of guard. He found the relators at Purdon attending the election. After remaining in Purdon an hour or two, the witness and the relators went home to dinner. After dinner witness proposed to go to picking cotton. George excused himself upon the ground that he did not feel well, and the witness and his daughters, Hattie and Cora, went to the patch and picked cotton until near sundown. Just before quitting work the witness heard the Relator George, coming to the field with his dog, which was barking. *593When George passed, the witness and his daughters stopped picking, weighed their cotton and started for the house, the girls about one hundred yards in advance of witness. Witness had gone but a short distance when he heard loud talking. He turned to look in the direction whence it proceeded, and that instant heard the report and saw the flash of a shot fired from a pistol in the hands of Munn. This shot was followed by two others so close together that the witness could barely tell they were separate shots. John, who had been answering a call of nature, got up, and started to walk, but fell, his pants dangling about his legs, and witness thought that Munn had killed both of his boys.

At the time the shooting occurred the witness was standing "on a small hill about two hundred and fifty yards from the house, and about two hundred and fifty yards from the point where Munn fired the shot. Munn had then passed, and had gone about four hundred yards from witness’s house. The place where the shooting occurred was on lower ground than that on which witness stood. Corn stalks and weeds intervened between the two points; and witness did not see either of his boys when the shots were fired. He did not see Munn until he turned at the sound of the voices, and Munn fired the first shot from his pistol just as the witness caught sight of him. Munn was traveling east, and the witness was going west, just before the shooting. Witness distinctly saw Munn, who was on a mule. Witness did not see George at all, nor John until he got up from where he was squatted as before stated. When John fell down,. the witness thought he had been shot. He, witness, then ran to his house to get his gun, but finding it empty left it, telling his daughters to go to Major Hanson’s house, and ask him to come to his, witness’s, house. Witness then started back to the field where the shooting occurred, and met the relators. To his question, "what is the matter?” George answered: Munn and I have exchanged shots, and I made a narrow escape. Here (indicating his coat) is where he plugged me.” Witness replied: ‘Go at once and surrender to an officer.” He, George, went at once to the house, mounted his horse and rode rapidly to Major Hanson’s house, reaching there about the time the girls did. Major Hanson returned with George, and the latter proceeded at once to prepare his things to go to Corsicana to surrender. John employed himself fixing his pistol while George was gone to Major Han-*594fob’s. A crowd gathered about the time that George got back from Major Hanson’s. George took his gun with him to the field on the fatal evening, for the purpose of shooting some cows that were in the habit of breaking in upon the crops. He had previously shot them with bird shot, but had told witness that, as the bird shot had not kept them out, he had determined to try them with larger shot. He took his dog with him. When he saw George coming to the field, with his gun and dog, witness said to his son Frank, who was with him: “Run and see if the cows are in the field, and if they are drive them out or George will shoot them.”

George and John must have gone due north on leaving the house, and thence through the cotton patch, then around the pasture, and thence up the pasture fence to the Corsicana and Waco road. They took that route to avoid the difficult walk through the stubble in the field. Munn could have saved a full quarter of a mile by going through Slaughter’s field. George had on his coat when he got on' his horse to go to Major Hanson’s, and that coat then had a bullet hole in it. John fixed his pistol during George’s absence, discharged one shot, and remarked that he would risk it firing. Neither of the relators went to Munn’s body with the crowd. After making some preparations and eating supper George got a crowd together and went with them, or rather got them to go with him, to Corsicana to surrender. Witness went, to the place where Munn’s body was, but did not see the body, as it was dark. A small fire and a lantern were burning at the said place. Adams, Aderholt, Slaughter and others were there. The weeds flanking the Corsicana and Waco road on either side were called blood weeds, and in places were over ten feet high. They stood dense in some places .and sparse in others. George was living with witness at the time. John, who was a married man, had sent a part of his household effects to Ellis county, whither he was moving, and at that time the balance of his effects were loaded in a wagon, which was standing in witness’s yard to be sent forward on the morrow.

Cross examined, the witness said that the point in his field from which he saw the first shot fired by Munn was about two hundred and fifty yards from his house, and perhaps not more than two hundred yards from the Corsicana road. He had come five or six hundred yards from the cotton patch towards his house at that time. The shooting occurred about an hour *595before sundown. Four shots in all were distinguished by the witness, and they sounded very much alike. The gun used by George was a small breech loader. It belonged to the witness, who also owned another just like it, and a third one which was a muzzle loader. The ravine did not cross the road at the point where the shooting occurred, nor was there “much of a valley” at that point. John had no gun, but had a rope or bridle in Ms hand. He did not see Munn fall. The mule he was riding was capering about from the time the first shot was fired, as long as witness could see it. Witness could hear Munn talking much better than he could see him. Witness saw the flash of George’s gun, but did not see George himself at the time of the shooting.

On his re-examination the witness said that he considered the place at which the killing occurred unfavorable as an ambush. There was a ravine accessible to the road, about fifty yards from where the killing occurred, into which either or both the relators could have gone, and have been completely hidden from the view of a person on the road. The place in the road from which George fired, and the place in the field where John was at that time, were open and clear. From the place in the road where George fired he could see up and down the road at least one hundred and fifty yards each way. The witness’s field fence along that road was a straight fence, partly rail and partly wire.

The relator John Hanson testified that for some time before, and until a day or two preceding the evening of the killing, he lived on the Howard place, about a mile distant from the house of his father, the preceding witness. Witness had dispatched some of his household goods to Ellis county, whither he intended moving on November 7, 1888, and had the balance of his effects packed in a wagon ready to go forward. He saw Munn, Thweatt and Simpson on their way to Purdon on the fatal day. Purdon was about three miles distant from witness’s father’s house. Witness and his brother went to Purdon soon after-wards, arriving there about 9 o’clock. They remained about the polls at Purdon for perhaps three hours, when they went back to their father’s to dinner. About an hour before sunset the witness and his brother left their father’s house and went to the field to see if the cows were again depredating on the crops. They went through the cotton patch to the pasture, and thence up the pasture fence to the road. Leaving the house *596they went north by the road through the field, which tool? them directly away from the main Corsicana road. They pursued that route five or six hundred yards, out of sight of the said Corsicana road, and then went east down a small branch, over which they could not see the road. They then went up the pasture fence to get a bridle that witness had left hanging on the fence at a point near the gap. That gap was about two hundred yards from the main Corsicana road. Witness got the bridle, and when he and his brother reached the fence near the road, the witness had a call of nature, to relieve which he squatted down in the field, and George crossed the fence to the road. While relieving himself the witness heard Munn cursing George. Among other things he said; “Oh yes, I’ve got you now where I want you. I tried to do up your father with an axe handle, and I will try you with something else.” George was then sitting on the bank of a small ditch on the road side, and could see up and down the road a distance of one hundred and fifty or two hundred yards. Munn then fired two shots at George, and George seized his gun, which was lying on the ground near him, and shot at Munn. The sun was about thirty minutes high when the shooting occurred. Munn could have passed along that road without being seen by parties in the said field. Witness had no pistol or other weapon at the time of the shooting. ^Neither he nor his brother had ever had any trouble with Munn. Their father had a difficulty with him some time before the killing. George took the gun with him on the fatal evening for the purpose of shooting cows which he expected to find depredating on his crops.

On his cross examination, the witness said that the first intimation he had of iVlunn’s proximity at the time of the shooting was the cursing of George by Munn. The witness was then inside the field, twenty or thirty feet distant from Munn and George, who were on the outside. He did not see either Munn or George until he stood up, which was a moment or two before Munn fired. Four shots were fired. The first two were fired by Munn immediately after he began cursing. George seized his gun and took it up from the ground between the two shots fired by Munn. There were no trees, bushes nor weeds at the place of the shooting. George crossed the fence into the field immediately after the shooting, and he and witness went home, meeting their father about two hundred yards-from the house. Munn fell off his mule; that animal, which *597had been fretting, went off toward home. Witness, with J. J. Adams and Bowton, accompanied George to Corsicana on that night.

The relators closed.

S. M. Bowton was the first witness for the State. He testified that, at the time of the killing of Munn, he was at Aderholt’s house, about a quarter of a mile from the point where the killing occurred. He heard the shots fired at the time of the killing. The first two were loud reports. After a brief interval two more shots were fired, making fainter reports than the first two, and after a somewhat longer interval the fifth arid last shot was fired. The first four shots sounded like guns, and the last like a pistol. The witness had just reached Aderholt’s house from Purdon. He and Munn traveled from Purdon together to the head of a lane, near which the killing took place. They parted at the head of the said lane, witness going to Aderholt’s via Slaughter’s place. The killing occurred a very short time after their separation. Some time after the shooting Henry Hanson, a cousin of the relators, came to Aderholt’s after witness, and witness, with Aderholt, J. J. Adams and Freeman, returned Avith him to Munn’s body,—Henry Hanson and said Adams having previously been there. Munn’s body was lying slightly quartering across the road in or near a slight depression in the road. A pistol lay on. the ground, pointing straight irom Munn’s head. Witness saw another pistol on Munn’s person. While the several parties named by the witness were at the body, C. J. Hanson, the father of the relators, appeared and said: “There seems to be a little excitement here.” He, C. J. Hanson, then pointed to the pistol lying on the ground, and asked if any person present knew that pistol. Witness saw the relators in Purdon on that day, and at their father’s house after the shooting, and went to Corsicana with George on that night. Witness and his crowd were the first to reach Munn’s body that night.

E. A. Slaughter testified, for the State, that he was at home sick at the time of the killing of Munn. Between sun down and dark on that evening the witness heard five shots. There was a slight interval between the second and third shots, and a somewhat longer interval between "the fourth and fifth. The first two shots were the loudest. The second two shots were fired from a breech loading gun. About an hour after he heard the shots the witness was informed by his son of Munn’s *598death, his said son telling him that he had passed Munn’s dead body on the road. Witness was not familiar with Munn’s reputation as a law abiding or law breaking man. He had known Munn since 1880; during which time he was on neighborly but not intimate terms with him, and recognized him as a good neighbor and a good citizen. There was a ravine in the witness’s field which ran up to the fence near the place where the killing was said to have occurred. There was another small ravine in Hanson’s field opposite, that ran out of the field under the fence, and then turned suddenly back into Hanson’s pasture, making an elbow immediately under the fence. There was a third ravine between witness’s house and the place where Munn was killed.

On his cross examination, the witness stated that he was unable to swear to Munn’s reputation as a fighting man. He had heard of Munn having trouble with Wright, with Berry and and with the Hansons, but he never heard Munn threaten the Hansons. He also heard that Munn was arrested once for aiding others in a fight with one Ward. He also heard of a party once cursing Munn on a race course, and that Munn went home, got his gun and went back to the track. The witness was familiar with the use of fire arms, and from a distance could tell the difference between the report of a breech loading and that of a muzzle loading gun.

Describing the wounds found on the body of Munn, Doctor W. A. Bates testified as follows: “I found altogether fourteen wounds on Munn’s body. Probably some of the missiles made each two holes. There were wounds in the right temple, running down and backwards, two scalp wounds, one wound on the back of the neck, one on the left thumb, one on the right side under the arm, one in the right arm that ranged through, two on the back that ranged up to and under the shoulder blade, and one on the right hip. The said wounds were mostly on the right side. I don’t think the wounds in the temple and scalp could have been made by the same discharge. They must have been from separate shots. I judged from the appearance of the wounds that the wounds on the scalp were made with a pistol ball. The shots in the body all ranged upward, and the temple wounds went straight through. Thirteen shot struck. I counted fourteen wounds from thirteen shots,—two glancing. I took no shot out of the body. Dr. Gillian had been to see him before and probed the wounds. I looked at the ground where *599Munn was killed from my horse, and did not get down. Dick Thweatt and Lon Cox were there with me. There were tracks in a ditch close by, but inside of a field. There were weeds on the roadside, but I did not notice whether they were sufficiently dense to shield a man. The wounds in the temple produced instant death. The wound in the loin would have resulted in death, but not instantly.”

On cross examination the witness said: “Going west the tracks in the ditch would have been to the right. The shots in the body, ranged up. There is doubt about the direction shot will take after entering the body. We often read of one striking the skull and going around the head. The range of the probe in the temple wounds would have been from the right ear to the rear of the left. I did not probe them. The scalp wounds made abrasions of the skin only. They struck the head in front and were at right angles to the wounds in the temple. It does not take a professional to determine the place at which a ball entered a body. It always leaves a larger and a ragged hole at the point of exit.”

Cloud Slaughter testified, for the State, that he was at the pasture gate between the houses of his father and Freeman when the killing of Munn took place. He heard five shots, the balls or shot of which went to the right of witness,—witness being about 580 yards distant from the place where Munn was killed. The first two shots were very loud- ones; the other three not so loud. Ten or fifteen minutes after the first shots were fired the witness heard a pistol shot fired at or near Hanson’s house. He then heard women crying. About an hour after-wards he heard of Munn’s death. Including the pistol shot, witness heard six reports.

C. C. Aderholt testified, for the State, that while he was at his supper table on the evening of November 6, 1888, he heard five shots, with slight intervals between the second and third and the fourth and fifth. The first two were louder than the second and third, which in turn were louder than the fifth. To the witness the shots sounded like gun and not like pistol shots. Some of the boys came into the house just0after the shots were fired and remarked: “We are having fun soon after the election.” Within the next thirty-minutes the witness heard of the killing of Munn. Henry Hanson called witness to his gate and said to him: “We want you; George Hanson has killed Jim Munn.” Witness replied: “Certainly not!” Henry re*600plied: “Oh yes, he has; and I want you to go and see about it.” By this time the witness’s family had congregated at the gate. Witness asked Henry Hanson: “How do you know Munn is dead?” He replied: “J. J. Adams and I have been there, and he is dead.” Witness then went with a party of gentlemen, including Henry Hanson, to Munn’s body. He found the body lying in the road at the point where the shooting occurred. A small five shooting pistol, with two barrels discharged, was lying on the ground, about two and a half feet from the head, the muzzle pointing towards the head. Dr. Gillian was then sent for and soon arrived. He opened two jackets that were on the body, and inside the jacket next to the skin he found a full loaded large pistol. While the parties were examining the body C. J. Hanson, the father of the relators, appeared on the scene, and remarked, as he stopped some distance from the body: “Hie! You have some excitement here. There is a pistol; who does it belong to? Do any of you know that pistol?” He then added: “George wants to give up, and wants some of you to go to town with him.” Before witness went to Munn’s body Henry Hanson said to him: “The girls came to my house and said that Munn was dead. George said: T killed Munn. How don’t ask me any questions.’ ” There was a ravine near the place of the killing and thick weeds not far from it, Munn’s mule was shot through the nose and neck on the left side, with what witness took to be large squirrel shot.

Eugene Slaughter testified, for the State, that he was at his father’s house at the time of the killing. Before good dark the witness, being in the lot, heard five shots; short intervals elapsed between the second and third, and the fourth and fifth shots. Witness could Cell, at a distance, the difference between shots fired from *&'*gun and those fired from a pistol. He thought the said five shots were fired from guns. The Slaughter pasture gate was nearer the place of the killing than was the lot in which the witness was standing when he heard the shots.

Doctor Gillian testified, for the State, that he examined the wounds on Munn’s body, probing those in the right temple and the back. The range of the balls which inflicted those wounds was back and upwards. The body when witness first saw it was lying in the road, the back towards Hanson’s house. A five shooting pistol was lying on the ground near the body, but witness did not examine it. The wounds in the temple were *601fatal; they entered and ranged at right angles to the scalp wounds. The wounds in the back appeared to have been inflicted with squirrel shot. The shot or balls that entered the temple penetrated the base of the brain.

S. M. Patterson testified, for the State, that he heard of the killing of Munn on the morning after it occurred, and went to the place where it occurred to examine the ground. He found foot tracks in a “little sink” just inside Hanson’s field. High weeds were growing along the line of Hanson’s field fence, but not immediately in front Of the point where he saw the said tracks. A person traveling the road just outside the field could not see a party sitting down at the point where the witness saw the tracks. From that point the tracks led through the fence into the road near the point where Munn fell. Witness found no tracks on the side of the road opposite Hanson’s field, nor in the opposite field. Witness saw two pistols at Munn’s house, one of which was said to have been taken from Munn’s body, and the other to have been found on the ground. Witness also saw Munn’s mule on that morning. It was shot through the nose and neck on the left side. Witness was familiar with the nature of a mule, and knew that a mule, when stricken on the side of the head, would turn around.

Cross examined, the witness said that Howard, Bell and others were with him when he examined the ground at the place of the tragedy. A plain impression on the ground at the “sink” or ravine showed where a man had sat, there being also foot prints in the bottom of the ravine. The said ravine was a “washed out place.” The ground was bare at that point, and there was nothing between it and the fence. There were two impressions of a man’s feet in the ditch or ravine, but witness found no foot prints leading to them. There was but a single track between those impressions and the fence, and there were two or three in the road outside of the fence. Witness had been told that various parties visited that place on the night of and after the killing.

D. W. Hill testified, for the State, that he examined the ground in the vicinity of the killing on the morning after it occurred. In the small ravine described by the witness Patterson the witness saw the impression of a knee and a foot. He observed tall weeds growing along the line of the fence. C. J, Hanson’s house was in sight of the place of the killing. Witness observed the wounds in the neck and nose of Munn’s *602mule, and thought they were inflicted with number three buck shot. Howard and others were with the witness. Howard testified, for the State, substantially as this witness did.

Joe Hodges testified, for the State, substantially as Howard and Hill did, and stated in addition that the foot tracks in the ravine showed that the person standing there faced the road. Witness was in his field, about three quarters of a mile distant, when the fatal shots were fired. He heard five shots, which he took to be reports from shot guns, the two first being the loudest. After the lapse of some time he heard the fainter report of a weapon fired at or near Hanson’s house.

B. J. Anderson testified, for the State, that he was at Mrs. Curry’s house, about a mile and a half distant from the place-of the killing, on the evening of November 6, 1888. He heard five shots, all of which in his opinion were from shot guns— the first two, which were the loudest, being fired from a muzzle-loader, and the remaining three from a breech loader.

William Farmer testified, for the State, that he was on his way to Bob Farmer’s house at the time of the killing. Before he reached the said house he met Latch Dew and Mr. Withrow, who told him of the killing of Munn, and asked witness to go with them to the body. The witness went as requested. He found Munn’s body lying in the road, with one leg somewhat doubled under the body. Witness turned the body over and straightened it, and in doing so he saw a pistol in the coat or vest pocket. He examined that pistol and found it to be loaded all around. He saw another pistol on the ground near the body. He examined that pistol also, and found it to be a five shooter with two or three of the chambers empty. The hammer was resting on an empty shell. The empty chambers were all cankered, indicating that the pistol had not been recently discharged. Witness placed the two said pistols back in the same-places where he found them. Aderholt took the two said pistols to Munn’s house, where they were placed in a trunk. Witness left Munn’s body about ten o’clock that night. It was-then "misting,” and quite a shower of rain fell afterward.

Latch Dew testified, for the State, that he was at his home, about a mile and a half from the place of the killing, at the time it occurred. He heard the shooting, but paid only enough attention to it to note that the first two were the loudest of the shots. He afterward went to the body, and near it found a forty-four calibre five shooting pistol. He examined that pis*603tol, and believed it to be the same pistol which one Lancaster showed him about five months before. He would not, however, swear that it was the same. He did not examine the pistol for marks, though Lancaster, when he showed his pistol to witness, said that he had put marks on it. Witness never saw either of the relators in possession of the Lancaster pistol. According to the recollection of the witness, the pistol he found on the ground near the body had three empty chambers.

James Belt testified, for the State, that he saw the relators at the election in Purdon on the day of the killing. He did not see them engage in a private chat, but during the day he saw George call John, and saw the two go off together. He did not know where they went. On the next morning the witness made a partial examination of the ground about the place of the killing. The weeds to the right of the place in the ravine where a person had made foot tracks were higher than a man’s head. The tracks leading from the gully to the place where Munn fell showed that the party stumbled in getting out of the gully.

Bolley Dew testified, for the State, that he saw both of the relators on the day of the election in November, 1888, and saw the relator John Hanson on the day of the inquest. We did not observe the shoes worn by either of the relators on either of those days. He had never heard either of the relators utter any positive threats against Munn, but, about the time the Han - sons were charged with stealing some wine, George said to witness: “You have heard about this wine trouble? Well, Munn got me into it, and if he swears on the witness stand that I got the wine, he and I can no longer live in the same neighborhood and do well.” The witness knew as a matter of fact that George Hanson frequently, if not habitually, carried his double barreled shot gun before the killing and' before the wine trouble. He carried it stock hunting and 'sparking the girls. ” Witness saw George, John and Henry Hanson in conversation in Purdon on the day of the killing. Witness and Munn passed them,—witness speaking to them. Munn did not speak, or if he did, witness did not hear or see him do it. The witness, on the morning after the killing, saw the pistol said to have been found on the ground near Munn’s body. It was a nearly new bull-dog five shooter. Two or three chambers were empty and somewhat cankered. Witness thought that an empty chamber of a pistol *604would canker in one night if left on the ground. . It might, however depend upon the weather as to whether or not it would canker in that time. Witness and Pink and Dan Lancaster examined that pistol closely for marks, but found none. It was insisted by somebody in the crowd that the said pistol was the same pistol that George Hanson publicly claimed some time before.

Justice of the Peace Walton testified, for the State, that he held the inquest on the body of Munn. He directed Dr. Bates to make a post mortem examination of the body. Witness saw fourteen wounds in the body, four of which were mortal wounds. He observed particularly the wounds in the temple, right side, hip and chest. He did not think all of the said wounds could have been made by the same discharge. They indicated that they were inflicted by different shots fired from different directions. One pistol was found on Munn’s person, and another on the ground. The one found on the ground was taken apart on witness’s order and examined for marks. Ho distinct marks were found on it, although some dim scratches were discovered, which might have been the stamp of the maker. Some time before a similar pistol, but with marks somewhere on it, was found at or near one of the neighbor’s chicken roosts, and was afterwards claimed by George Hanson, and it was to discover the marks to identify the pistol found near the body as that claimed by George Hanson, that it was taken apart.

The State closed.

Several witnesses were called by the relators to testify about the tracks discovered in the vicinity of the killing. Their testimony did not vary materially from that of the witnesses for the State.

Bud Curry testified, for the relators, that he was the only Curry who lived in the neighborhood of the killing. R. J. Anderson, who testified on this proceeding as a witness for the State, was not at the witness’s house on the night of the killing. If he was there on that evening the witness did not know it, and was satisfied that he would have known it had he come there. Witness heard some shots fired late that evening, but thought they were fired in a direction nearly opposite from where the killing occurred.

Henry Aderholt testified, for the relators, that it was after dark, and the night was very dark, when he and others got to Munn’s body. They were at that place for some time before *605they got a light. The several parties present helped gather up the pieces of fence rails with which the fire was made. They scrambled around in the dark to get them, and it was quite a possible matter for some one of them to have fallen or stepped into the gully.

J. J. McClelland testified, for the relators, that, coming out of the sheriff’s office, in Corsicana, on the day before the kill-. ing, he met Munn. Munn seized him in a friendly manner, as was his custom, and witness threw his arms about Munn’s waist, in doing which he felt a pistol. Munn said: “Catching me under the circumstances, you wont have me pulled for it, will you?” Witness replied that he would not. Munn then said that he was going to apply to the sheriff for a deputyship in order to be entitled to carry a pistol, and asked witness if he thought the sheriff would appoint him. Witness replied that, in view of his, Munn’s, recent trouble with the Hansons, he did not think the sheriff would appoint him. Alluding to his pistol, Munn replied: “This is for the Hansons. You recollect the trial at Dresden?” The trial referred to was the trial of the Hansons for the theft of wine, in which Munn assisted witness in collecting evidence for the prosecution. Munn’s activity in that case appeared to embitter the feeling between the Hansons and himself, and he remarked to witness that if he, witness, had not been at that trial, he, Munn, would have “got” the Hansons then. Munn and old man Hanson had a difficulty in Corsicana a few weeks before the killing. Munn knocked old man Hanson, and was fined for it. He complained that he was “taxed” too much in that case. The witness remonstrated with Munn on the day before the killing, for carrying the pistol. He excused himself by saying: “Old man Hanson goes armed, and they are carrying a gun for me.” He did not say which of the Hansons was carrying the gun. Munn’s reputation was that he was an absolutely fearless man and a fighter. Witness did not know that he would seek and take advantage in a fight. On cross examination the witness said that the trouble between the Hansons and Munn antedated the wine theft prosecution. The Hansons, prior to the wine case, prosecuted one Jackson for libel, and on the trial undertook to prove that Munn wrote the libelous matter circulated by Jackson. Witness, at that time, was county attorney of Navarro county.

*Sinikins &*Neblett, for the relators.

*606Opinion delivered May 15, 1889.

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

Willson, Judge.

Upon the evidence as presented to us in the record, we are of the opinion that the applicant George Hanson is entitled to bail. The judgment refusing him bail is reversed, and he is granted bail in the sum of five thousand dollars, upon giving which in the manner prescribed by law he will be released from custody.

There is no evidence in the record showing the ability of the applicants to give bail, and we are not prepared to say that the amount of bail required of the applicant John Hanson is excessive; wherefore the judgment as to said applicant is affirmed.

*Ordered accordingly.*