
    Ex Parte Larkin Hope.
    
      No. 3537.
    
    
      Decided November 8.
    
    Habeas Corpus for Bail—Fact Case.—See the statement of the case for the substance of evidence held insufficient as “proof evident” of a capital offense, and therefore insufficient to support a judgment refusing hail.
    Habeas corpus on appeal from the District Court of Colorado. Tried below before Hon. George McCormick.
    The relator in this proceeding was held under an indictment charging him jointly with Marion Hope with the murder of John Stafford. The judgment refusing bail to this relator is reversed, and he is awarded bail in the sum of $5000.
    James T. Lee was the first witness for the relator. He testified, in substance, that he witnessed the whole of the fatal difficulty which occurred in front of the Nicolai saloon, in the town of Columbus, Colorado County, between sundown and dark on the evening of July 7, 1890. En route up-the street the witness encountered the relator and his brother Marion standing in the south front door of the said saloon, the relator to the right and Marion to the left as one would enter the door. Witness stopped, shook hands with the Hopes, and entered into a friendly conversation with them. Presently B. E. Stafford, the brother of John Stafford, rushed by the witness, confronted the relator, and angrily shaking a finger of his right hand in relator’s face, while he held an open knife in his left hand, said to the relator, “God damn you, you put my boy in jail, did you?” The relator replied, “ Mr. Stafford, I only did my duty as an officer; I did not put him in jail.” R. E. Stafford said: “Ho, and God damn you you had better not. You are all a set of damned curs and cowards.” During this time the said Stafford held the open knife in his left hand, the blade extending up his sleeve. The relator retreated or backed a few steps into the saloon, drew his pistol, which he held down by his side, and said, “Don’t come on to me, Mr. Stafford.” Thereupon the said Stafford (R. E.) advanced a few steps towards the relator, still holding his knife in his left hand, but was intercepted by Hatch York and Creed Hancock, who tried to get him away. He refused to go, and Hancock turned to the relator and said to him, “ Put up your pistol and don’t have a row.” The relator put up his pistol and replied to Hancock, “I don’t want any trouble; take Mr. Stafford away.” Hancock and York then succeeded in getting the said Stafford out of the saloon to the sidewalk.
    About this time relator’s wife, in a buggy, drove up to the curbstone at the southeast corner of the saloon, stopped, and called the relator. The relator went to the buggy, put his right hand on it and his right foot on a hub, thus exposing his left side to R. E. Stafford, York, and Hancock, about twelve feet distant. Mrs. Hope asked the relator to go home with her. He declined, on the ground that he was in the performance of his duty as a peace officer. During this time R. E. Stafford persisted in cursing the Hopes, denouncing them as curs, cowards, and sons-of-bitches. He, relator, turning his head towards the parties, asked Hancock, “Why don’t you take that knife away from Mr. Stafford?” Stafford (R. E.) replied, “Yes, I have a knife and will use it; you have a pistol, but, Goddamn you, you are afraid to use it.” Hancock, speaking to Stafford, said, “ That’s Hope’s wife; don’t talk that way.” Stafford retorted in a loud voice: “ God damn Hope’s wife. He (Hope) is a nigger-f-g son-of-a-bitch, and he” or “she”—witness could not say which, but believed he alluded to Mrs. Hope—“will suck a nigger’s a—s.” The relator exclaimed, “That is more than I can stand,” stepped to the middle of the sidewalk and said, “If you say that, you are a God damned liar.” About this time John Stafford, the deceased mentioned in the indictment, passed R. E. Stafford rapidly, advanced upon the relator, and exclaimed, “You can’t talk that way to brother Robert.” Thereupon the relator drew his pistol, and addressing the deceased said, “ Don’t run on to me.” At this moment the witness turned and started off up the street. The shots were fired immediately after the witness turned, and he did not see by whom they were fired. When he got across the. street at a point known as the Arnold corner the witness looked back and saw R. E. Stafford in the act of falling just inside the saloon at the south side door. Ho shots were fired from in front of the saloon after E. E. Stafford fell. The Staffords were brothers, of nearly the same size, and much more powerful men than the relator. E. E. Stafford was very angry when he accosted the relator, and, until the shooting, the relator manifested a purpose and desire to avoid a difficulty.
    M. W. McLeod testified for the relator that he saw the shooting from a distance of about thirty feet. The relator, when witness first saw him, was standing at a buggy talking with his wife. E. E. Stafford, cursing and abusing the relator, was then standing on the sidewalk, a few feet distant. York was trying to get him away. Presently the relator stepped from the buggy to the sidewalk. About that time John Stafford, the ■deceased, with a bundle in his hand, passed E. E. Stafford, went thence into the saloon, left the bundle, returned, repassed E. E. Stafford, rapidly advanced upon the relator, and was still advancing upon the relator when the latter fired. The first shot he fired at John Stafford, the second at B. E. Stafford, and the third shot at John Stafford. Upon being shot E. E. Stafford turned and walked rapidly into the south front door of the saloon, in the direction of where Marion Hope then was. At this time witness heard shots fired from that direction, but he did not know who fired them. Immediately after he fired the third shot, which was the second shot he fired at John Stafford, the relator passed around the south corner of the saloon, from which direction the witness soon heard shooting. John Stafford, after he was shot, walked to the north front door of the saloon and sat down next to the north jamb. After the shooting was over the witness saw John Stafford lying on his back with his feet extending out of the north door of the saloon about twelve inches. E. E. Stafford was lying in the saloon near the south door and near the lunch counter.
    Hugh Smith, the bartender at the Hicolai saloon, who testified that he heard and saw the whole of the difficulty except the actual firing of the several shots, detailed the transaction substantially as did the witness Lee, and declared that though at a greater distance from B. E. Stafford than was Mrs. Hope when the said Stafford used the violent and obscene language repeated in evidence by Lee, he, the witness, distinctly heard it.
    It was shown by other witnesses for the relator that at the time of the homicide the relator was in a weak physical condition, the result of an incompletely healed stab wound in the bowels inflicted upon him six or seven months before, and that no attempt to escape was made by him or his brother Marion after the killing.
    G. W. Wilson was the first witness for the State. He testified, in substance, that passing the Hicolai saloon at about 7:20 o'clock on the fatal evening he saw the relator and Marion Hope, E. E. Stafford, York, and Hancock in or about the saloon door. Bob (E. E.) Stafford had a knife and the relator a pistol. Stafford said to the relator: “You had no business to put the nippers on my boy and drag him through the streets like a dog. I don’t object to your arresting him and putting him in jail when he deserves it.” York then told Bob Stafford to put up his knife, which Stafford did, and the relator put up his pistol. About this time, and while Bob Stafford was cursing in a loud voice, Mrs. Hope drove up in a buggy and asked the relator to go home. Relator replied to her, “I won’t go home; I will camp right here; I have done nothing to Mr. Stafford.” About this time Bob Stafford said: “I am not afraid of him. I raised him;. I fed him when he was hungry and clothed him when he was naked; I have known him since he was so high (indicating with his hand), and he is nothing more than a negro f—g son-of-a-bitch.” About this time Marion Hope left the saloon, went to the buggy, and said to the relator’s wife, “You go home, and go damned quick; this is no place for you.”' Marion Hope then returned to the saloon, and the relator stepped to the sidewalk and shot John Stafford, who was standing about twenty feet away. John Stafford was then doing nothing, had done nothing, and had not spoken a word. He, John Stafford, then staggered back and sat down in the north door of the saloon against the north jamb. Hpon John Stafford being shot Bob Stafford went rapidly into the saloon, and witness immediately heard shooting in the saloon. The relator then went around the saloon into Spring Street, from whence the witness heard other shots fired. Relator soon returned from the south side of the saloon with his pistol in his hand. York, who was between the middle and north doors of the saloon, threw up his hands and exclaimed, “For God’s sake, Larkin, don’t shoot me,” and ran into the store adjoining the saloon. The relator then presented his pistol at John Stafford, who was still sitting in the north door, and said to him, “ Trot out here with your life, you son-of-a-bitch, and take your medicine like a man,” fired, and John Stafford fell back on the floor. This was the last shot fired. The relator and Marion Hope then walked off towards the Arnold corner, working their pistols as if removing empty shells or reloading. Neither of the Staffords had anything in their hands at the time of the shooting.
    Cross-examined, this witness located himself on a rock near the north corner of the saloon until it became evident that shooting was going to-ensue, when he sought shelter behind a contiguous tree. From this point of vantage, looking around the body of the tree, he saw the shooting. He was here asked by the counsel for the relator if, on the coroner’s inquest, he did not testify that he got behind the tree and saw nothing of but heard the shooting? He denied that he made such statement, although it so appears in his written testimony before the inquest. This palpable conflict the witness explains as follows: “I was asked (at the inquest) if I saw the bullet leave the gun. I said I did not, and told what I saw as I have told it here. They asked me, ‘ Shall we put it down that you didn’t see the shooting?’ I said: ‘Put it down as you please. I saw the man with the pistol in his hand point it towards John Stafford, heard the report, saw the smoke, and saw him fall back. These are the facts, and you may put it down as you please.’ ”
    Hatch York was the next witness for the State. He substantially corroborated the relators’ witnesses as to what transpired up to a few moments before the shooting, except he stated that when he requested E. E. Stafford to put up his knife he did so. When Hancock put his hand on the relator and asked him to put up his pistol, Marion Hope put his hand on his pistol and ordered Hancock to take his hands off the relator. While the relator was at his wife’s buggy, during which time E. E- Stafford continued to curse in a loud voice, John Stafford came up, and Hancock said to him, “Let’s get the old man (E. E.) away from, here.” John Stafford then walked into the saloon, deposited a bundle on the counter, and started back. As he came out of the saloon E. E. Stafford called the relator a “nigger loving son-of-a-bitch.” Eelator then stepped to the pavement, drew his pistol, and said “That is more than I can stand.” He instantly fired upon and shot John Stafford, who had passed E.- E. Stafford about two steps and stopped. John Stafford then turned and walked to the north door of the saloon and sat down. Immediately upon shooting John Stafford the relator turned his pistol upon and shot E. E. Stafford. The latter turned and walked into the saloon, and as he entered was shot three times by Marion Hope. As E. E. Stafford entered the saloon the relator ran around the saloon to Spring Street, from whence witness heard several shots fired. The relator soon returned to the front of the saloon, pistol in hand. Witness threw up his hands and said to him, “For God’s sake don’t shoot me; I have nothing to do with this fuss.” The relator then said something to John Stafford and again shot him, and the latter fell. Neither of the Staffords had anything in hand when shot; both were standing still, with hands down, and only E. E. Stafford was cursing. The relator’s witness Lee was not present during the difficulty, or witness would have seen him. He reached the scene a short time after it was over.
    Explaining to the sheriff, soon after the killing, his reason for not forcibly interferring to prevent the difficulty, the witness York told the said sheriff, in substance, “I took hold of Bob Stafford, looked him in the eyes and tried to look him down, but I saw he had hell in him, and I didn’t use force because I didn’t want any difficulty.”
    The material part of the testimony of the State’s witness George Best was that he saw the last shot fired, and that it' was fired in front of the saloon by the relator immediately after he returned from around the saloon corner. This, according to the other witnesses for the State, is the shot fired by the relator into the body of John Stafford after he was wounded and while he was sitting in the saloon door.
    In rebuttal of this testimony Dr. Byars, for the relator, testified that he was in front of the building and saw the shooting. No shot was fired at John Stafford after he took his seat in the front door, and no shot was fired in front of the saloon after that time.
    
      Brown, Lane & Jackson, Kennon & Mansfield, and M. H. Townsend, for relator.
    
      W. L. Davidson, Assistant Attorney-General, for the State.
   WHITE, Presiding Judge.

Appellant and his brother, Marion Hope, were jointly indicted in the District Court of Colorado County for the murder of one John Stafford. They sued out a writ of habeas corpus for bail during the September Term of the District Court, and the case was heard on said trial by Hon. George McCormick, the presiding judge. On said hearing Marion Hope was granted bail in the sum of $2500, and judgment was rendered refusing bail to this appellant. From that judgment this appeal is prosecuted.

Suffice it to say that we have given the evidence as contained in the record our most mature consideration, aided in doing so by the able oral arguments of counsel, both for the relator and the prosecution, and our conclusion is that the appellant should be granted bail.

We find in the record that “it was agreed in open court by the parties that if bail was granted Larkin Hope it should be fixed at $5000.” Such being the agreement, the amount of bail will be fixed at the sum of $5000; and upon appellant executing a bond with good and sufficient sureties in said sum of $5000, conditioned as required by law, the sheriff of Austin County, in whose custody the appellant now is by virtue of a change of venue in the case, will release him from custody to await his trial under the indictment. Judgment is reversed, and it is so ordered.

Ordered accordingly.

Judges all present and concurring.  