The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1894-11-22

Jury, and the superior court had but little
10 zeal with. The statute makes the iury
me exclusive judges in such cases of MI
ne vme iacts, and they concluded that Reyes
uos aStuated by express malice against
h9rnsby when he shot him.
IL Is always with reluctance that tha
court sets aside the verdict of the iurv
ooieiy on question of fact when there is
any evidence to support it. In other
NoIus, there must be no evidence to SIM
port the verdict, or the evidence must he
iinsunclent to rebut the presumption of
Innocence, or the verdict itself must he
IhanlieStiy wrong or contrary to the evi-
uo uemce, Defore court of last resort will
reverse criminal case on a question of
iact' According to the verdict filed before
tne court III this case the applicant was
guilty OF murder in the first or second
aegree. AS said before, the jury, in pass
ing on that question of fact under the
court charge on the law, found that he
nau committed the most ineXcusable, the
nlosI Wanton and cruel offense known to
the law-murder in the first degree-that
| upon express malice against Hornsby. he
| mad murdered him. While the facts NAV
| support the verdict under the law beforn
the court feel that in ninety-nne cases
out OF every hundred similar to this one
that may be tried in the courts of the
civilized world, a different verdict would
De rendered against the accused, and the
remaining one would be granted executive
cienlency' only the very slightest cir
| Cuhstances were proven to SuppOrt the
tneory that applicant understood what the
kkIlornsbys were doing to or with his friend.
| NOR IS there anything to show his previous
knowledge that they were there to keen
the peace. There is nothing to show that
even a moment elapsed from the time he
rushed to the call of his friend in trouble
to the time when he fired the shot. He
mad never met or known either of the
Hornsbys. He had no deliberate formed
design to- kill either of them. There
were no former grudges or antecedent
menaceS by or between them Though
unJustlhable, the act was sudden, quick,
lmpulsive, inconsiderate, and committed
under. very peculiar circumstances sur
rounding stranger in country foreign
10 ms own, while his seemingly imper-
lied friend was calling for extraordinary
| ald 10 my mind the act should not call
iorth the death penalty, especially when
the material facts showing its commission
were testified to by very ignorant and per-
haps prejudced Mexican witnesses.
Another phase of this case that appears
somewhat singular to me: Mr. Hornsby
was one of the oldest and most respected
CITIZENS of Travis county. No man in
| the county stood better among his large
1
by all who knew him. His loss was keen.
~ felt by thousands of warm friends and
! neighbors. For years he had held high
elective official positions. Immediately
after he was shot, his son and friends
surrounded him, took him to his home,
4 mile or two distant, where he lived
several days thereafter. He was rational
from the first until the near approach of
death. The strange thing to me is that
ms statements madeC if at alD immediate
y after the killing, or his dying declara-
tions III any were not given to the jury.
80 lar as the record before the court is
concerned, he never said a word about
the act in any respect whatever.
Hearing that Hornsby had made an
ante-mOrtem statement, | summoned be-
fore me two reliable witnesses for the pur-
pose Of learning from them what he did
say. They We're his friends and did not
volunteer their statements. They each
answered, on separate examination, that
MIR. tiornsby stated that in the row she
picked up chair and struck one of the
| MeXicans three or four times" One of
| these, gentlemen says that Mr.. Hornsby
| or in the act of hitting the Mexican, the
pistol ball was fired into his body. The
other says that according to his recolec-
| ton Hornsby said he used the chair on
the Mexican just after the shooting.
These gentlemen heard him make his
statement at separate times; and they re-
peat his language to me without material
| conflict, except as to the particular junct-
ure of the difficulty when he ''hit the Mex
| icap over the head with a chair" No wit
ness on the trial testified to these facts or
| to either of them. The next morning af-
ter the killing a" prominent daily paper
published similar statement as having
come from Mr.. Hornsby.
Add to all these circumstances the fact
that applicant is an ignorant, friendleSs
human being, and a foreigner among
strangers whose language he cannot |
speak or understands; and the fact that |
the court had to appoint counsel to de- |
fend him; and the fact that the state, |
though represented by an able district at |
torney. had the assistance of an unusu-
ally able prosecutor employed by private J
persons; and the fact that the trial was |
held in this community where the de-
ceased had long been one of the most
popular men in il; and considering the fur
ther fact that while confined under the
death penalty, applicant declined the op,,
portunty of leaving the Jail
at the time Il large num-
Der of other prisoners, including
whites, blacks and MeXicans made their
escape ana IelU lne uOOTS Wlut OpeH anu |
| see in and around and about this case
much to lead my conviction into revolt
against inflictions. of the death penalty
on the said Francisco Reyes for the hom-
icide. while the more temperate sentence
of life Imprisonment has within it the
elements of mercy and justice to light up
the way and lead me to conscientious
and l hope correct, disposition of his
case.
Exercising the constitutional preroga-
tiyes vested in me as governor, do here
by commute and set aside the death sen
tence of him, the said Francisco Reyes
and order that he be consigned to I'M
prisonment in the state penitentiary dur
ing his natural life as the law may di-
rect. '' D. IiOpp,
THE CRIME.
Saturday evening. Sept. "a, 1892. at
10 o'clock. ex-Sheriff Hornsby left this
city on horseback for his home down at
thc Bend. As he passed down the Ave
nue. and East Sixth street he knew not
that which fate had in store for nm
and that he was destined never again to
look on the familiar scenes of the Cap,
toI CITY. His horse was a good one ana
tbn night being Il clear, bright. starlight
ono. and the road being in excellent con
dition he found in keeping his morse at