
    Ex parte SPURGER et al.
    (Court of Criminal Appeals of Texas.
    May 10, 1911.)
    1. Habeas Coepus (§ 113) — Appeau—Review oe Evidence.
    The court, on appeal from a judgment on habeas corpus denying bail to one indicted for crime, will not comment on the testimony, its weight, or the circumstances incident to the alleged offense.
    [Ed. Note. — For other cases, see Habeas Corpus, Dec. Dig. § 113.]
    2. Habeas Coepus (§ 107) — Criminal Pbos-eoutions — Evidence.
    The court, on habeas corpus for the 'discharge of accused indicted for murder, on his giving bail, held, on the showing made, required to grant bail.
    [Ed. Note. — For other cases, see Habeas Corpus, Dec. Dig. § 107.]
    Appeal from District Court, Anderson County; B. H. Gardner, Judge.
    Habeas corpus by Jim gpurger and others. From a judgment denying bail to applicants, and remanding them to custody, they appeal.
    Reversed, and bail granted.
    
      John M. King, Earl Adams, Moore & Sal-las, and N. B. Morris, for appellants. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexer
    
   HARPER, J.

It appears from the record in this case that Jim Spurger, B. J. Jenkins, Steve Jenkins, Curtis Spurger, and Isom Garner were indicted for murder in the district court of Anderson county, growing out of the killing of some negroes in the eastern part of Anderson county in July of last year. The court changed the venue of these eases to Harris county,. when an application for a writ of habeas corpus was filed by each of the defendants and granted by Judge Robinson, but made returnable before the judge of the district court of Anderson county, in which county the offenses are alleged to have been committed. By agreement of counsel, all the causes were consolidated, and the evidence heard was to apply to each application. Upon hearing the matter, the judge hearing the applications refused the five above-named defendants bail and remanded them to the custody of the sheriff, from which order an appeal has been presented to this court.

In this character of case, this court does not comment upon the testimony, its weight, nor the circumstances incident to the alleged offense.

We have read the record carefully and thoughtfully and arrived at the conclusion that the defendants, and each of them, are entitled to hail, and the judgment of the district court is reversed.

Without comment, however, we will copy herein a portion of the testimony of two witnesses introduced on behalf of the state, Mr. Singletary, justice of the peace of precinct No. 3, and Mr. Alvin Oliver.

Mr. Singletary testified:

“I live five miles on this side of Slocum. As I went back down there the next morning, I saw a big crowd of them that were coming from Palestine. They were going down the road in buggies and wagonloads of them, and when I got to where the bodies of Luss Holly and Aleck Hollis were lying in the road, I don’t know how many I found, but suppose 30 or 40 white men were there. I went on from there up to Mr. Wise’s, and I suppose that a hundred men come up there; they were coming from Palestine and around, but I don’t know whether they were coming from the other side over in Cherokee county or not; but there was a good many from Palestine. I would say that the first time I heard about the trouble between the white folks and the negroes was on Friday evening, when I was down there when those men came up; and Jim Spurger said that he had been threatened and outraged until it had become unbearable, or something to that effect. I am not positive, but I think that they told me that the ne-groes had threatened his life; but I don’t believe that Mr. Spurger told me that they had threatened to burn his house and kill out his family. I heard that on Saturday.
“I heard on Saturday that the negroes had been holding secret meetings and organizing for the war, and I heard that they would give signals for the meetings by firing guns. I heard that they had a secret society at their church — a church by the name of St. James Church — and I believe I heard of another one at Sandy Bulah. I heard that they had these secret meetings, and that they tolled the bells around there, and would tap the bells so many times for their secret meetings. • But I didn’t hear that the negroes had become very insolent towards the white people, and would ride by the houses where the white women were with their hats cocked on the side of their heads, whistling. But I heard that they were carrying their.guns, and I heard about Abe Wilson ploughing in the field with a Winchester rifle strapped to his plough; and some one told me that he said that if he caught any damn white man fooling around about his people that he would break their hide; and I heard that Abe Wilson was the one that summoned the white people on the road, and that the white people didn’t like it. But I didn’t hear that he said he was as good as they were, and I never heard that the negroes said that they were going to occupy that country. I heard that they had a signal of some kind, they met by, and that they were going to burn Mr. Spurger’s barn, and while they were outdoors they were going to murder his family. And I heard that stray negroes from Cherokee county and other places had been in there organizing these secret lodges; but I didn’t see any stray negroes in there, and I never saw any negroes in there at all. On Satui’day I heard that the negroes in that neighborhood had their necks bowed, because that negro in Cherokee county had been burned for murdering and raping a child over in Cherokee county; heard that they were getting gay on that account; were insolent and impudent and mean.
“I would suppose that that neighborhood is located about 17 or 18 miles from the county site of Anderson county; but I couldn’t tell you how far it is located from the county site of Houston county, and I don’t know how far it is from Augusta to Denson Springs either. And I couldn’t answer as to how far it is from that neighborhood to the county site of Cherokee county. I couldn’t form any exact idea about how many white people in there for a radius of five miles around that killing; but at Den-son Springs I think they vote or poll something like 75 or 100 votes, and Denson Springs would come in a five-mile radius, and Slocum would come in there, too, and they poll a hundred. Well, there must be something about 150 or 200 voters in that radius, and allowing five to the family it would make something between 750 and 1,-000 people; but that would be a 10-mile radius to take in all that territory, and, to take. it that way, I believe the whites are about as numerous as the negroes, if you take that large a territory; but if you reduce it down to a five-mile radius, instead of 10 miles, the negroes would outnumber the whites four to one. I am not well enough acquainted in that country to tell' as to whether there would not be over 25 white people, or S or 10 families, in a radius of five miles. I did not go to Denson Springs. I did not see the women and children assembled together and guarded by the men, except at Slocum, and I have no idea as to how many families were there; but when I came back Saturday evening there was a large crowd assembled there, when I got back there. It would be entirely guesswork to say how many people, from first to last, were in this reign of terror and excitement in that community, counting all of them — women, children, men and boys, citizens and noncitizens; but I would guess something like a thousand.”

Alvin Oliver testified:

“I said my name is Alvin Oliver. I am married, and have been married eight years next October. I am 28 years old. I married old man John Green’s daughter. I am not related to the Dotsons. Old man Denson is my grandfather; my mother was a Denson. I first heard of that trouble on Friday evening or Saturday morning but I have forgotten exactly where I was when I heard about it; but I was not at Jim Spurger’s; I went there Saturday morning. I believe I heard of it on Friday. I don’t reckon I lived over 400 yards from where this killing occurred and lived something like a mile or three-quarters from where Jim Spurger lived. I have forgotten where I stayed Friday night; I have forgotten whether I stayed at home or at papa’s, but there was a big crowd where I was. And I believe I stayed at my grandfather’s one night; but I have forgotten whether it was Saturday or Friday night. There were two nights that the men stood guard and there was a big crowd at both places I stayed each night. The men carried their guns, and they stood guard all night. They would take it time about guarding the houses, and I stood guard some myself. I didn’t stand guard all night, I don’t suppose, but something like half the night. We stood guard, because we had heard a whole lot about the negroes coming in there; that there was one crowd . coming from, across the river in Cherokee county. I think there was to be 500 supposed to be coming in that bunch — 500 negroes supposed to be coming from Cherokee county in one bunch to kill out the white people. And I heard all about that Friday night; it came to me some time about Friday night, about the time we all got together. The talk of the ne-groes rising is what scared us, and after we got together we heard about the Cherokee negroes coming. But before we got together,' and after we got together, and before ive went to Will Burley’s house, I heard about them having a secret organization to murder the white people. I don’t know that I heard about the negroes giving signals by shooting a gun to meet in the night, and I don’t know that I heard about the tapping of the bell in a peculiar manner.
“I heard all about that country being full of stray negroes organizing tho'se secret orders, and I heard that the negroes were becoming very insolent and mean and impudent, and I know that was true, because I had seen them myself, and I thought it was a fact that the negroes were carrying their guns more than they used to. And I knew that it was a fact that they would pass white folks houses, with their hats cocked on the side of their heads, whistling, and would run their horses by the houses; I saw that. And they called one another ‘Mister’ and ‘Mistress’ in speaking of the ne-groes. For instance if one negro wanted to speak to Jack Hollis, he would call him ‘Mr. Jack Hollis,’ and if he wanted to speak of Mr. Jim Spurger (a white man) he would call -him ‘Jim Spurger.’ I heard at Jim Spur-ger’s, before we started over there to Will Burley’s, a general talk among Jim Spurger and these defendants and others there about the fact that Jim Spurger’s house had been surrounded by the negroes Thursday night, and I heard Jim Spurger tell about Ollie Burley telling him about it. Ollie Burley had given up his gun and agreed to quit. It seems like I heard something to the effect that Ollie Burley said that his brother, Will Burley, had been in that business, and that he wanted them to see him and get him to quit it. As to whether they also said that the Wilson'negroes were in the same thing, I don’t remember just what negroes it was. I don’t remember whether it was 14 men in that bunch when we went over to Will Bur-ley’s or not; but there was a good crowd, and we all started over there together. And we met Tom Thornton on the way over there, but I don’t remember whether he said that we had better be careful when we got down to the.house; that Will Burley would kill us; that he saw him walking around in the yard with a shotgun that day or not. I don’t remember what he said myself. And I don’t remember that I heard it talked in the crowd that that was said. I don’t remember that I heard it said in the crowd that they were going to get Will Burley to give up his gun and quit that meanness; that that was their purpose in going over there. I don’t remember whether they said why they were going over there at all or not. I did not go over there to kill him.
“We folks had an idea that we were going to warn these negroes to quit their devilment; that was what we were going, to Jack Hollis’ and Sam Dupre’s for; and then went from there to Will Burley’s for the same purpose, or that is the way I took it.' I don’t remember whether we' went from there to warn Will Newman or not; don’t remember whether there was anything said about warning him or not, but we didn’t find him down there at the shingle mill. Ollie Burley lived on Jim Spurger’s place, but I was not present when they went down there and talked to him that morning. I suppose we could have gone down there and killed him Just as easy as the others. That insolent manner and conduct of the negroes commenced at the time that negro was burned in Cherokee county for raping and murdering that white child; it seemed to me it did. The negroes down there are not disbehaving now. I don’t remember whether it was before we went to Will Burley’s, or that night, that we heard it that those negroes from Cherokee county were coming over to help kill out the white folks in that community. I said while ago that we heard it the night I stayed at my grandfather’s; but I don’t know whether I stayed at my grandfather’s Friday or Saturday night. I suppose that there were a thousand people down there in that reign of terror and excitement. They assembled together over that country in the houses, and the men guarded the women and children for two or three nights.”

These were witnesses introduced by the state and vouched for by the state.

Upon the question of the amount of bond that should be required of each defendant, we find the following agreement in the record, signed by the attorneys for the state and defendants: “In the cases against above applicants, wherein hail has been granted, it was fixed by agreement of attorneys for defense and the district attorney and the trial judge at $1,500 in each case for each party. If bail should be granted any of said parties in the Court of Appeals, we suggest that the amount of such bond be fixed in said court at the same amount it was fixed in the trial court, as above stated. This is done in view of the financial condition of the parties, believing that such a sum would be just and proper under the circumstances.” In accordance with said agreement, so entered into the bond of each of the defendants is fixed in the sum of $1,500 in each case in which each of the defendants has been indicted, and the defendants will be released upon the execution and delivery of such bonds, in the terms of law, approved by the proper officer.

The judgment is therefore reversed, and bail granted in the sum of $1,500 in each case.  