The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1886-11-11

jumped out of the wagon he could have
struck defendant as he jumped out before
the pistol was fired.
VIM. Collins testified: That there was
no one in the spring wagon when the shot
was fired; about two seconds after he saw
one in the direction of Newman's store.
DR.. Swearingen reiterated the testimony
as taken before the coroner's jury and re-
ported at the time in The STATESMAN.
The testimony in the Smith preliminary
hearing has all been taken, and the case is
now under advisement with Justice Pur-
nell, who will probably render his decision
tomorrow. The following is the evidence
that was given in to day;
THE TESTIMONY.
The defense introduced John Schenil
who testified l am employed by Mon
roe Miller as an omnibus driver and was
so employed on the goth; know Smith, the
defendant; knew Clemens, the deceased; l
was down at the depot on the evening of
October 20, and boy came there and
wanted the transfer wagon to go to the
hotel after trunk; the driver of the
transfer wagon was not there and l got
on the trrnsfer wagon and went to the
hotel for the trunks; at the same time
Clemens came along behind me with his
wagon; | was in the act of backing my
team up to the hotel, and Clemens drove
in between me and the sidewalk and
jumped out of his wagon, grabbed the
trunk and started to put it in his wagon;
the defendant told him the transfer wagon
was there to take the trunk down; Glenn
ons said the man sent him after the trunk
Smith again told him the transfer would
take the trunks down; Clemens says, "by
George, the man told me to come and get
those trunks" Smith told him to let them
alone, the transfer had come after them
to take them down; Clemens then turned
the trunk loose and some colored boys
assisted me in putting the trunks in my
wagon.
then drove to the depot; left Glenn
ons at the hotel; he was talking,
[ suppose to defendant, but 1 do not
remember what he said; after
the train came in l started up the Ave-
nue. on my bus; when 1 was nearly passed
the Raymond house 1 saw Clemens; he
had stopped his wagon on the west side
of the street car track near Pine street; he
had just about got on Pine street; l kept
driving on up the Avenue; saw MIR. Smith
going across the Avenue; when he got
right close to Clemens wagon Clemens
jumped out, and looked to me like he was
jumping right on to Smith; they looked
like they were tussling; when Clemens
jumped out of the wagon his hand was
lifted like he was going to strike; they
were right at each other and seemed to be
tussling; pistol shot was then fired;
was about thirty or thirty feet up the
Avenue from where Clemens jumped out
of the wagon; didn't stop my horses, but
kept moving along slow, and went on to
the stable; l suppose Smith fired the pis-
tol, though | saw neither of the parties
have pistol.
Cross examined by the state:-"The
porter of the Raymond house came down
to the Union depot about 6:20 on the
evening of October 30, and said to the
porter at the depot (Holmes) that trans
fer wagon was waited at the Raymond
house to bring some trunks; the driver of
the transfer wagon was called for several
times and could not be found; whea one
of Mr.. Miller's hack drivers called out to
me to go afCer it, Immediately got into
the transfer wagon and started for the
trunks when defendant told deceased at
the hotel, to let the transfer wagon have
the trunks, deceased said: MIR. Smith,
Tor Mister Tom I don't remember
which,, "a man sent me for the trunk.
Smith said to deceased, Let it alone; the
transfer wagon has come after it," 1t
took me about or 10 minutes to go from
the depot to the Raymond house and re-
turn with the trunks; after returned to
the depot 1 suppose | remained there
about 20 or 30 minutes; the train was
some Is minutes late; heard no CONVEX
sation between deceased and gentleman
at the depot about trupk;
after the train came in and all the passen-
gers had gotten off, l started up the Ave
nue.; some one or two or three hacks had
started up the Avenue before l did; l saw
no hacks coming up the street behind me;
| heard the rattle of wagon, however,
coming up the Avenue behind me; while l
was driving up the Avenue and had gotten
to where the south line of Pine street
crosses the Avenue, my attention was at
tracted by some one speaking in a loud
voice, near the Raymond house, when l
looked behind and saw deceased just in
the act of stopping; he was in the rear of
me, on the opposite side of the street,
some eight or ten feet further down to-
wards the depot; also saw Mr.. Smith
going across the Avenue; he was in the
rear of me some fifteen or twenty feet
when 1 saw him, and going in the direc-
ton of where deceased had stopped his
wagon: kept on going up the Avenue,
with my head turned back of me,
looking at defendant and deceased
lust as defendant got within three feet of
deceased, the latter jumped out of his
wagon toward defendant, and the pistol
fred within about one or two seconds
after deceased struck the ground; at that
time l was about thirty or thirty five feet
above where deceased and defendant
were on the Avenue; there was an electric
light near where deceased and defendant
were, and 1 could see plenty enough to
see that they appeared to be struggling
the electric light was in front of the
saloon in the Raymond house building;
saw the flash of the pistol where the de-
PENDANT and the deceased we're standing
| could see both of them plainly from
where l was, when the pistol fired, but
could not see the pistol; defendant and
deceased appeared to be wrestling with
each other, but didn't see either strike
at other while they were on the ground;
deceased seemed to strike at defendant
as he jumped from the wagon; did not
see the defendant raise his hand in the