
    Ex parte WALKER et al.
    (No. 10937.)
    Court of Criminal Appeals of Texas.
    May 11, 1927.
    1. Bail <&wkey;52 — Facts held not to justify holding relator, charged with murder, in default of hond for $35,000, $7,500 being sufficient.
    In habeas corpus proceeding, facts showing that relator, charged with murder, was not positively identified as one of parties present at crime did not justify holding him in default of bond for $35,000, bail of $7,500 being sufficient.
    2. Bail <©=>52 — Facts held not to justify holding relator charged with murder in default of bond for $15,000, $1,500 being sufficient.
    In habeas corpus proceeding, where state’s witness appeared to exonerate relator charged with murder from any participation in matter, facts held not to justify holding relator in default of bond for $15,000, bail of $1,500 being sufficient.
    Appeal from District Court, Hutchinson County; Newton P. Willis, Judge.
    ■ Petition for writ of habeas corpus by Hugh Walker and others. From the judgment, petitioners Walker appeal.
    Reversed and bail fixed.
    Dewitt Bowmer, of Temple, for appellants.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

The petition for writ of habeas. corpus includes Ed Bailey, as well as Hugh and Whitey Walker. No order appears in the transcript as to Bailey and no notice of appeal by him. Hugh Walker and Whitey Walker are under separate indictments charged with the murder of Coke Buchanan. Upon a hearing in the habeas corpus proceeding Whitey Walker’s bail was fixed at $35,000, and Hugh Walker’s at $15,-000. Prom this judgrhent the appeal is prosecuted.

The principal and practically the only witness for the state was S. G. Neal. He and Buchanan were both on the police force at Borger. On the night of the killing he and deceased came out of a business place, and Neal observed Bailey and Hugh Walker near an automobile, while some 25 feet away was another party dressed in a gray suit, who was later ascertained to be Bay Terrell. The man supposed to be Whitey Walker was also near the car when Neal approached it or came up immediately. Bailey inquired if Neal had seen any one about the ear, claiming that a rifle had been stolen from it, which rifle Hugh Walker said had cost him $65. Neal observed that Terrell had a pistol stuck in his trousers. When Terrell approached him Neal reached for the pistol to disarm Terrell. • Bailey remarked to Neal, “You are a little'out of line aren’t you?” and about this time the man thought to be Whitey Walker placed a pistol against Neal’s side, and some one grabbed him from behind. Terrell took Neal’s pistol and remained standing still-while Bailey and Whitey Walker backed Neal down the sidewalk some 20 feet. Neal’s evidence appears to exonerate Hugh Walker from any participation in the matter and is to the effect that Hugh said to Whitey, when the latter had his pistol against Neal backing him away from Terrell, “Don’t do that.” After Neal had been backed away some 20 feet Buchanan, with his pistol in his hand, approached Terrell. Some words passed between them which Neal did not understand. Terrell immediately commenced shooting at Buchanan and fired several shots at him before Neal fled from the scene. Neal’s testimony leaves the impression that Hugh Walker and Bailey also fled. The man Neal thought was Whitey Walker remained. Neal heard other shots after he ran, but says up to the time he left no one had fired at Buchanan save Terrell. Neal does not pretend to know what became of the other parties. He gave the alarm, rearmed himself, and in about 10 minutes returned to the scene of the killing. Other officers reached the place ahead of him and found Hugh Walker and Bailey there. They disclaimed any knowledge of the killing. When Neal got back, he asked Hugh where Whitey was and Hugh said Whitey was not in town and had not been for several days. This was put in evidence by the state. When the officers arrived. Terrell and the other man, whoever he was, had disappeared. The only other eyewitness was a girl who came out of a dance hall and spoke to Buchanan as she passed. After taking several steps, she turned and saw that Buchanan had crossed the street and heard shots; she saw a man with a dark suit on fire at Buchanan who had fallen, and saw a man with a light suit on leap behind a car and crouch down behind it. She did not undertake to identify any of the parties save Buchanan. The witnesses all agree that the streets were poorly lighted. Neal says Bailey was dressed in a dark suit, Whitey Walker in a bluish gray suit, Hugh Walker in a dark gray sweater and trousers of bluish .gray, and Terrell in a gray suit.

Neal would not undertake to positively identify Whitey Walker as one of the parties present. The witness usually referred to him as the man “I thought” or “took” to be Whitey Walker. No other evidence is found which supplements this testimony or makes the identity of Whitey Walker more certain.

Neither is anything found in the record which indicates an acting together of relators and Terrell in the killing of Buchanan save as it may or may not be inferred from the recited facts.

Without discussing the general principles of.law relative to bail, it is our conclusion that the facts do not justify holding either of relators in default of the amount of bond as now fixed. The judgment will be reversed, and the bail of Whitey Walker is fixed at $7,500 and that of Hugh Walker is fixed at $1,500.

MORROW, P. J., not sitting. 
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