
    Ex parte WADE et al.
    (No. 5888.)
    (Court of Criminal Appeals of Texas.
    June 16, 1920.)
    Habeas corpus <®=»85( I)— Evidence held insufficient to show relators guilty of capital crime.
    Evidence in habeas corpus proceedings hold insufficient to warrant the trial court’s conclusion that the proof that relators, accused of homicide and seeking admission to bail, were guilty of a capital crime, justifying denial of bail, was evident.
    Appeal from District Court, Waller County ; J. D. Harvey, Judge.
    Habeas corpus, for admission to bail on behalf of Jim and Stewart Wade. Erom order refusing bail, relators appeal.
    Order reversed, and bail granted.
    J. M. Mathis, of Houston, for appellants.
    R. E. Ilanney, of Hempstead, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an appeal from an order of the district judge refusing bail. Re-lators are charged by complaint with . the murder of Gerald Sellars. -A voluminous statement of facts is before us, but the evidence will not be discussed in detail. In substance, it appears that some weeks prior to the homicide a quarrel took place between Nathan Sellars, the father of the deceased, and the relator Jim Wade. Subsequently Nathan Sellars fired at Jim Wade several shots, one of them taking effect in his back, and at the time of the homicide the record suggests the existence of ill feeling between Nathan Sellars and the relator Jim Wade. On the night preceding the difficulty in which the deceased lost his life, Jim Wade and Stewart Wade spent the night in a house belonging to Jim Wade, situated in a village in which Nathan Sellars with his family, including deceased, resided, the parties being neighbors. Early in the morning Nathan Sellars while, according to his testimony, looking for his calf, passed near the home of relators, and Jim Wade, observing him, and, as he claims, desiring to talk with Nathan Sellars with a view of reaching an understanding with him, went out of his house, informing his brother Stewart Wade of his purpose. When he reached a point about 100 yards distant from Nathan Sellars, shots were exchanged between them, each of them firing a number of times, the evidence being conflicting as to who was the aggressor, the state’s testimony going to show that Jim Wade fired twice before Sellars began, the re-lators’ testimony indicating that Sellars began to draw his gun on observing Jim Wade, and that they fired the first shot about the same time. Neither of them was injured, but ■during the duel the wife of Nathan Sellars called to her son, the deceased, and told him they were shooting his father. The deceased, arming himself, left the house, and was met by the relator Stewart Wade. As they met, according to the testimony of both the state and the relators, Stewart Wade said to deceased: “Let’s not have anything to do with this. We are too good friends.” There is a conflict as to the remainder of the conversation, but the evidence is undisputed that both began firing, deceased stepping behind a barn, from which he fired a number of shots, both of the relators, according to some of the testimony, engaging in the conflict with him, .and he finally received two wounds, from' one of which he later died.

The state, relying upon various circumstances, advances the theory that the record discloses against the relators conspiracy and premeditation. Stewart Wade contends that the evidence points to no wrongful participation in the conflict on his part, insisting that he but responded to the aggressive acts of the deceased. On the undisputed facts there are inferences that might be drawn by a jury favorable to the relators, and on the facts not undisputed there is a conflict of evidence such as on the whole record did not warrant the conclusion by the trial judge that the proof that relators were guilty of a capital crime was evident.

The order denying bail is therefore reversed, and bail granted to each of the relators in the sum of $10,000, upon the making of which under the terms of l&w with sufficient surety their discharge is ordered. 
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