
    Ex Parte John T. Rankin.
    
      No. 7488.
    
    
      Decided June 20.
    
    Habeas Corpus—Murder—Evidence.—See the statement of the case for evidence held, insufficient as “proof evident” of murder in the first degree, wherefore the applicant is entitled to bail..
    Habeas Corpus on appeal from the District Court of Fayette. Tried below before Hon. H. Teichmueller.
    The evidence adduced on the hearing of the writ is as follows:
    West Darlington, a witness for the applicant, having been duly sworn, testified as follows: I reside in Taylor, Texas. I knew Fritz Homuth; had known him for about two years. I heard him say some pretty hard things in Taylor about John Rankin. He said that Rankin was a robber, and he (Homuth) expected that he would have to kill him. This conversation occurred in October or November of last year. Homuth was at the time returning from the San Angelo races. About six weeks or two months ago I told Rankin of this in Taylor. I was introduced to Rankin at this time by Jim Earthman, and related the conversation to him.
    Henry Warren, a witness for the applicant, having been duly sworn, testified as follows: I remember the time when Mr. Rankin was shot at in his house. I was at the time when the shot was fired sitting in my room door and heard it. I sat there about a minute and put on my shoes. I then went in the house of Mr. Rankin. I saw some one going down by the side of Mr. Bradshaw’s fence. Going to the house I saw that some one had shot into it. Three buckshots were in the gallery post. The charge went through the door, shattering the glass. The door opens into the hall. The range of the bullets was across the hall into the room where Mr. Rankin’s little boy was sleeping. Some shots struck in about two feet of the boy’s bed: one bullet went through the wall and struck the house of a neighbor, Hr. Short. When I went in Mr. Rankin had his hand to his neck, complaining of the shattered glass that had struck him there. Mrs. Rankin was very sick at the time. She became uneasy about her little boy while I was in the house, as she had not heard from him. I went into the room where he was and.found him still asleep. She thought he was shot, because she could not hear from or see him. Mr. Rankin’s neck was bleeding at the time. The person whom I saw going down by Mr. Bradshaw’s fence was a little too far off for me to tell his size. I do not know whether Dr. Smith was. at Mr. Rankin’s at that time or not. Some persons were there on the gallery. I was at the time, and am yet, in the employ of Mr. Rankin, and live in a house on his place.
    Mrs. J. T. Rankin, a witness for the applicant, having been duly sworn, testified as follows: I am the wife of the defendant. Our house was fired into about fifteen minutes before 9 o’clock Wednesday night, April 29. I was very sick at the time. Mr. Rankin had gone to get his mail. I heard him as he came back and stepped upon the gallery. He was walking rather fast. As he stepped into the door I heard the gunshot. I was lying in my bed at the time when I heard the shot and the breaking of the glass. I cried out, “Oh, dearest, what is the matter? Are you shot?” He replied, “I believe I am shot in the neck.” I sprang out of bed and ran.to him; when I reached him he was rubbing his neck, which was bleeding. He drew me down to him, lest I should be shot. I then screamed and called for Dr. Smith several times, but received no answer. I then went to the window and called for Shirley Wilkins and Bush Wilkins. They came over. I then thought of my boy, and not seeing him I feared he was shot. Mr. Rankin drew me away from the window and blew out the light, for fear we might both be shot. We had previously placed creton curtains over the glass of the door and before the windows to obscure the view from the outside. We did this because of a letter which Mr. Rankin had received on the Monday or Tuesday after the corner stone of the court house was laid, on the 9th of April, 1891. On the day of receiving the letter Mr. Rankin came home to dinner and seemed in deep anxiety and agitation. He sat down to the table with the rest of us but ate no dinner, and was absent-minded and said nothing. When asked by me what was the matter, he said there was nothing. He got up from the table, and I said, “Mr. Rankin, I wish to see you on business before you go down town.” After I had finished waiting on the table I went to him and said, “Mr. Rankin, I want to know what is the matter; I have a right to know.” He then showed me a letter he had received from Manly Turner warning him that his life was in danger. I recognize the letter shown me as the one received by my husband from Mr. Manly Turner. It was postmarked April 13,1891, and read as follows:
    
      “Elling-er, April 13, 1891.
    “Friend John—I write you this to let you know from what I hear from some of our townsmen that were up there Thursday last that there were and are still some men in La Grange that intend to do you harm some way. You ask Henry Meyer about it when you see him, and he will tell you the same he has told me. I don’t think they will harm you openly, but you keep a lookout. From what Henry heard they intended to raise a fuss with you last Thursday, but I suppose their hearts failed them. I write you this so you can be on the lookout and not be caught napping. Henry says your name was not called, but from what he understood they were after you. Henry will be up Wednesday, and you make him tell you all he heard. Henry may be mistaken and they may not be after you, but he thought they were. Your friend, “Manly Turner.
    “P. S.—Keep this to yourself, except Henry.”
    [Said letter with its postscript and postmarks was here introduced in evidence by applicant in connection with the testimony of Mrs. Rankin.]
    At the time of showing me this letter he said: “I am the most m Iserable man on earth.” Having received this letter, my husband was in constant fear of being shot through the window or door; and for that reason I placed up the curtain mentioned. Mr. Rankin’s mental condition from the time he received this letter until the time of the difficulty was something terrible. He was in constant excitement and anxiety all the time, and seemed perfectly miserable. From the time he received the letter up to the time when he was shot at he was constantly expecting to be killed. I usually went with him after the mail at night, because I did not think they would shoot him while I was with him. After the house was shot into he gave me a memorandum of certain amounts due him by certain parties for which he had no notes. He gave me this, saying that if he should happen to be killed it would aid me in collecting the amounts.
    [The following was identified by witness as said memorandum, and was here offered in evidence by applicant in connection with Mrs. Rankin’s testimony, to-wit: John Schuhmacher has a note of mine on Frank Lidiak, with J. T. Duncan’s indorsement; it was transferred to him so as to collect it. Frank Reichart owes me $112.50 on coffin trade. W. S. Robson owes me 870 or thereabouts, as security for Sam Moore, colored. My grain book will show how much the account is, and the note is with my notes in my drawer in office.]
    On the day after the killing of Fritz Homuth Mr. Lane came up to our house to get the Turner letter above mentioned. I was at the time sick in bed. I told him the letter was in the drawer of my dresser, and gave him the key to open the drawer with. When he got the envelope he took out the letter and with it the memorandum, and opened and began reading the latter first. I told him to give me the memorandum, but he said he would keep it. That is the first time it had been out of my possession since it was given to me, and my husband has never seen it from the time of giving it to me to this day. My husband has not staid at our house with me since the second night after the attempt to assassinate him. I was so sick that I could not stand it, and told him that if he insisted on sleeping at home he must move me to some of the neighbors; that they might come back again and shoot in or burn the house down if they knew he remained in it at night. From that time he never slept at home. We got Shirley Wilkins to stay in the house at night. On the night our house was fired into I was sick in bed, and protested against my husband going to the postoffice, and begged him not to go. He said he must go. I did not know where Mr. Rankin was at the night before the killing, or where he slept that night.
    J. W. Sample, being sworn for applicant, testified: On the night John Rankin was shot at in his house I was in La Grange. I heard the shot was said to have been fired into the house at him. At the time of the shooting I was standing in the saloon of E. F. Rehman & Co., talking to Squire Baker and Ed. Rehman, and heard the report. After a short time I went out to the front of the saloon and saw Judge W. S. Robson and Mr. J. Lane sitting on the bench in front of the saloon of Rehman & Co., waiting for a jury to return a verdict. After we had talked a little while Mr. Lane proposed that he and I play a game of dominos. He and I then went into the saloon and played two or more games, and we then went out on the sidewalk and started to go to the court house to see about the verdict. On our way we saw a knot of men in front of Hermes’ drug store, and they told us about the shooting at Rankin and all of the particulars; also told us about the post-office robbery. We then went to the Iron Front saloon, the up stairs or second story of which was then used as a court room. When we got there W. S. Robson and Fritz Homuth (deceased) were sitting in front of the saloon in chairs at the edge of the sidewalk, with their faces to the saloon. Lane spoke to Robson and the deceased, and asked them if they had heard of the attempt to assassinate Rankin. Robson said they had not. Lane then told them all we had heard, whereupon deceased said, “It is a pity the shot did not kill the damned rascal,” or, “damned son of a bitch.” Lane said, “That is strange, Fritz, that you are wanting an assassin to succeed.” Deceased then said, “ I will bet he shot at himself, or had it done.” The jury then reported that they had agreed, and we went up stairs.
    Shirley Wilkins, a witness for the applicant, being duly sworn, testified as follows: On the night Rankin was shot at I tried to trace up the men who did the work. In company with Ike Kennedy, a deputy sheriff, John Killough, and some others I searched the house of Ike Plummer, a negro. Plummer was a gambler who worked with Homuth (deceased), and was under his control. I went under summons of Mr. Kennedy, the deputy sheriff. We did not find any gun. The next morning I saw Fritz Homuth. He said, “You searched my negro’s house, did you! If you had gone to Bill Bankin’s or Zwerneman’s you might have found a gun.” Bill Bankin is the brother and Mr. Zwerneman the former partner of Mr. Bankin, the applicant.
    John Killough, a witness for the applicant, being duly sworn, testified as follows: On the morning after Bankin was shot at I saw Fritz Homuth, the deceased. Shirley Wilkins and 1 were together. Homuth said: “Shirley, did you search my negro’s house good! If you had gone to Bill Bankin’s or Zwerneman’s house you might have found the gun.” By his remarks he left the impression on my mind that he meant to say that the firing into Bankin’s house was a concocted plan of Bankin’s. He seemed to be very mad at Bankin, and said many hard things about him.
    J. F. Zwerneman, a witness for the applicant, being duly sworn, testified as follows: I know John Bankin, the applicant, and knew Fritz Homuth, the deceased. On the Friday before Homuth was killed, and after Bankin’s house was fired into, I saw Fritz Homuth as I came by Wolters’ saddlery shop. Homuth stopped me and said, “I understand your friend Bankin has told you that I fired into his house.” I told him that Bankin had told me nothing of the kind. He then said, “You are a liar; a fellow told me.that he did.” I again said Bankin had told me nothing of the kind. He then said, “I know he did; it will be the cause of my having to kill the son of a bitch.” This was about 4 o’clock in the afternoon. I saw him again the next day. I was at White & Lunn’s drug store; had- to go there to get some cough medicine. I was sitting on the sidewalk waiting for Dr. Lunn to come, as the druggist had advised me I had better see the doctor. I saw Bankin go into the barber shop in the Lester House. After a minute or so he came out and went into the drug store (White & Lunn’s). He went to the back of the store and went out of the back door across the street to Dr. Smith’s office. At this time I saw the deceased and John Biley coming down the street. Both were armed, having their pistols in front, stuck in the waistbands of their pantaloons. I heard Homuth say, “How is the time to get the damned son of a bitch; I saw him go across the street into the drug store.” They came to the drug store and looked in, but did not go inside. Black - . stone White, the druggist, was in the drug store at the time. They then went and looked into the barber shop for him. Hot finding Ban-kin in either the drug store or the barber shop, they went on down to Mehringer’s store. They did not find Bankin there, and returned to the Iron Front saloon. I went and found Bankin, and told him that Fritz Homuth and John Biley were looking for him to kill him. This was the Saturday before the killing. I am John Bankin’s friend and used to be his partner. I am positive that Homuth and Eiley did not go into Seftenberg’s store at the time I speak of; they just went there and looked in and turned around and came back. Mr. Eankin was on the streets of La Grange a great deal between the time his house was fired into and the day Homuth was killed.
    Dr. C. E. Smith, a witness for the applicant, being duly sworn, testified as follows: I am a practicing physician in the town of La Grange. I know the applicant, John Eankin. About the time of his attempted assassination I was treating Eankin for catarrh of the head in my office once a day. My office is across the street, opposite the drug store of White & Lunn, and over Schuhmacher’s. The steps go up to my office on the east side of the building, next to the drug store. In the side of the drug store néxt to my office there is a side door next to the rear of the drug store. A person on the square near the Iron Front saloon could see a person enter White & Lunn’s drug store, but could not see him leave through the side door of the drug store and go across and up to my office. On the afternoon before the night Eankin was fired at I treated Eankin. He was evidently very much excited, and said to me, “I have been informed by some of my friends that some parties here are going to do me up.” Eankin seemed to be very uneasy and very much excited, as though his life was in danger. I get my drugs at White & Lunn’s. I often went into the drug store and often saw Otto Ehlinger and Jake Wolters, and sometimes Dr. Lunn, in secret conversation. When I would enter the talk would cease and they would break away from each other. One night I saw Wolters and Ehlinger in close conversation; when I entered they stopped. Wolters seemed mad. I said, “Jake, there seems to be blood on the moon.” He replied, “I am tired of being slapped around and kicked about, and am going to put a stop to it.” At that time I had heard that Jake Wolters and John Eankin had recently had a difficulty. Several days afterward Ehlinger told me that there were twelve or fifteen men looking for Eankin one night, and had they have found him they would have done him up. After the attempted assassination of Eankin I communicated this to him. From the time that Eankin first told me that he had been informed by friends that some parties in La Grange were going to do him up, until the killing of Homuth, he seemed to be very much excited and anxious; whenever there was a noise of any kind he would get up and look uneasily around. ■ The expression of his face indicated a high state of mental excitement. From the lines and expression of his face, his excitement and anxiety seemed to be intense; and judging from his expressions, his actions, and all the circumstances, I do not think he could have been at any time in a cool state of mind or capable of cool reflection. After his house was fired into Eankin offered to sell his place to me for $2750. He said he had talked to some of his friends and they had advised him to leave in order to avoid assassination. The conversation between Ehlinger and myself, in which Ehlinger stated that twelve or fifteen boys were hunting Rankin the night before, occurred several days before Rankin was shot at. It took place in White & Lunn’s drug store, in front of the prescription case, and we were alone at the time. The remark made by Wolters to me above referred to was in Ehlinger’s presence, and was several days before Rankin was shot at. I saw Ehlinger and Wolters in their secret consultations six or eight times, all before the attempted assassination of Rankin in his house. On the Saturday evening before Homuth was shot there was a shotgun in my office. I do not know how it came there, how it left, whom it belonged to. On the afternoon before the shooting I did not see any one with a shotgun on my gallery, overlooking the square. If Rankin had been there before I left my office I think I should have seen him. I was not at home when Rankin’s house was shot into. It was about 9 o’clock when I reached home. I went to his house shortly afterward, his negro boy having come for me. I found his neck was wounded by glass shattered out of the door. When I got to his house Mr. Rankin, his wife, and little boy were there. I can’t say whether Shirley Wilkins was there at that time. From this time until Homuth was killed I continued to treat Rankin daily in my office, and have treated him in jail every day since the killing. I treated him to-day in the court house. I had offered him $2750 for his place before, but he would not take it. I would nearly always leave Rankin in my office, after treating him, when I left.
    Dr. W. W. Lunn, a witness for the applicant, testified: I am a practicing physician, and live in La Grange. I know defendant, and knew the deceased. I was present at the inquest of deceased. His body was in a small room behind the Iron Front saloon when I first saw it. Deceased was a large man, about six feet high, and I think would weigh over 200 pounds. He measured forty-three inches around the chest. He was shot on the right side near the right nipple. Fifteen buckshots entered his body, four of which passed through his right arm, all in front of the bone, and went into the body under the arm; the other eleven went entirely in front of his arm; the most forward shot was about two inches in the rear of the right nipple, and the most backward about three inches from the most forward, and they extended from the armpit about six inches downward, covering a space about the size of my hand. Two shots went entirely through the body; one came out about two inches behind the left nipple and the other about one-half inch to the rear thereof. I took put another shot about one inch below the latter. The load seemed to have passed directly through the body, ranging neither upward nor downward, slightly forward. There was a 45 five or six-shooter on the body. It was in a leather scabbard under the watch pocket of his pants, on the right side. Between the dates of the attempted assassination of Rankin and Homuth’s death I saw Rankin many times; and from the way he talked and looked, and from the expression of his face, I, as a physician, thought him to be laboring under great mental excitement produced by mental prostration. I have known Rankin a long time; have often treated him for nervous affection. I know him to be a very nervous and excitable man, much more excitable than the average man. Excitable men like Rankin, under such excitement as he was laboring, would commit acts which they would not do when they were calm. During the time intervening between the attempted assassination of Rankin and the killing of Homuth I do not think Rankin possessed a cool and deliberate mind. I know Jake Wolters; he boarded at my house for-about eight months. It is nothing unusual for me to talk to him. Otto Ehlinger, Jake Wolters, and myself never ceased speaking or broke away from Dr. Smith if he happened to walk up to where we were talking. We never broke away from him. Otto Ehlinger has been in the employ of White & Lunn since August, 1890. He.is a young man of 20. He is not a boy who would connive to kill a man. Jake Wolters is about 20 years old. He was with my family for eight months. He is not such a character as to connive to kill a man. It is very seldom I ever come to my store at night. Jake Wolters left my house in January, 1891. He fell out with John Rankin after he left my house, some time in March. I saw no one at the body with a shotgun. Otto Ehlinger, Jake Wolters, and myself were not in conversation with each other six or seven times within the last month. I never conspired to do any of my neighbors or any other man an injury. It might have happened that I quit talking to them when Smith came in, but not on that account.
    This witness said that Homuth was killed by the wounds he found on his body when he examined him at the inquest; and he died from the effects of said wounds on the 7th day of May, 1891, in Fayette County, Texas.
    Dr. C. E. Smith, a witness for applicant, having been recalled, testified as follows: I did not say that Dr. Lunn and Jake Wolters and Otto Ehlinger were all three talking together all the time, but sometimes they were. The conversations were usually between Jake Wolters and Otto Ehlinger. I sometimes saw Dr. Lunn and Jake Wolters talking together, and when I would approach they would break off. I do not remember of seeing Dr. Lunn and Jake Wolters talking together at night except probably once. These conversations were usually in the day-time. The conversations between Ehlinger and Wolters were usually at night. I did not, and do not, mean to say or intimate that Dr. Lunn was in a conspiracy to assassinate John Rankin. I have simply answered the question put to me—that is, “had I seen secret conversations going on in White & Lunn’s drug store, at which Jake Wolters was a party?”
    
      M. Cockrill, a witness for applicant, having been duly sworn, testified as follows: I saw Rankin on the Tuesday after his house was fired into. He was very much excited; I could tell it by his looks and the expression of his face and his actions. He was like a wild man, looking about him continually, watching in every direction. He told me that he was going to leave, and said he had to get away. He was at the time in his office giving instructions how to run it in his absence. •While I was there parties came in to see about their accounts. He would get the wrong book; seemed to be flurried and could attend to no business. I have known him well for a long time, but never saw him in such condition before. He did not possess a cool and deliberate mind at that time. I lived at Flatonia, and from Tuesday before the killing until after Homuth was killed I did not see Rankin.
    Fritz von Rosenberg, a witness for the applicant, after having been duly sworn, testified as follows: I know John Rankin and Fritz Homuth. On Sunday week before Rankin’s house was shot into I was standing on the sidewalk in front of Rosenthal’s saloon. John Carter and several others were there, and I think B. L. Zapp, the sheriff, and Heal Robinson also. John Rankin drove by in a buggy. His horse became frightened and ran between the horse rack and the court house fence. Fritz Homuth saw it, and rode up to where we were, and stopped and said, “I wish it had broken the son "of a bitch’s neck.” I am constable of this precinct. After the firing into Rankin’s house he came to me and asked me to help him detect the assassin, and complained that no other officers were doing anything in that direction. I then told him what I heard Homuth say, because I thought he ought to know it. On the morning shortly after the shooting I was sent for to go to Hr. Bradshaw’s residence, and there found John Rankin, and he surrendered to me. Mr. Lane went into the house and came out with Rankin, and then we went to the jail and locked him up.
    J. E. Faires, a witness for the applicant, having been duly sworn, testified as follows: I knew Fritz Homuth, the deceased. On the Monday after Rankin was shot at I had a conversation with Homuth in the town of La Grange. I said to him, “Somebody was after John Rankin.” Homuth replied, “The son of a bitch fixed that up himself; he got somebody to do it.” I said that was hardly reasonable, as his wife was very sick at the time and his little boy asleep in the house. I asked him what he had against Rankin, as I had always regarded Rankin as a good man. He replied: “You don’t know that man as I do; I will tell you something, which I want you to keep a secret. I have received a letter from a good friend with no name signed to it telling me that John Rankin has been over about Ledbetter trying to hire somebody to kill me.” I said to him, “Fritz, it was not a very good friend, else he would have come himself and told you, and not trusted to the mail, and would have let you know his name.” Fritz replied, “Oh, he knew I would get it.” I asked Homuth what he and Rankin had fallen out about. He said that while Rankin was United States marshal he met him on the train going to San Antonio; that Rankin had a big pile of letters from citizens of Fayette county asking him to resign his marshalship and return to Fayette County and run for sheriff. Homuth said that he told Rankin it was a damned lie, and that Rankin made no reply to him. He said he told Rankin that if he had any letters they were not from respectable white men, but from some damned negro. He said to me that Rankin was the lowest down son of a bitch on earth, and that he would do anything in the world, and seemed to possess the bitterest enmity for Rankin.
    John Killough, a witness for applicant, being recalled, testified as follows: On the night of the attempted assassination of Rankin I and others attempted to track the person who did the shooting. We found two tracks in the sand in the ditch; the toes pointed a little toward each other. These tracks appeared to have been made by some one while sitting or leaning on the bridge of the sidewalk. They were on the side of the bridge next to Rankin’s house, and were in a few feet of the southeast corner of his yard fence. Immediately next to the sand was grass, until we reached the street. In the street we found tracks, which are supposed to have been made by the same person. We followed these tracks southward down the street to the southwest corner of Mr. Bradshaw’s corner. Here we found a plot of grass, and could trace them no further on account of the grass and the hard character of the ground from this point. Mr. Kennedy, a deputy sheriff, then called three or four of us aside, including Mr. Davis Jones, Shirley Wilkins, and myself, and told us he wished us to go with him down to search the house of a certain negro. We did go with him and searched the house of the negro Ike Plummer. This negro is a professional gambler; he is lame in right leg, and walks with the toes of his right foot inclined or pointing toward his other foot. By saying we attempted to track the would-be assassin, I mean Davis Jones, Shirley Wilkins, Ike Kennedy, John Lane, Dave Killough, myself, and others attempted to do so.
    John T. Rankin, being duly sworn, testified: I am the applicant in this cause. The last time I was in Ledbetter was nearly two years ago. I passed through there in January, 1891, to attend the Hope cases as a witness at Bellville. I ate dinner there. Ledbetter was a dinner station. I never tried to hire any one to kill Fritz Homuth. I never had a cross word with Fritz Homuth in my life until he came to me once in Austin, while I was United States marshal, and asked me to loan him $40, which I declined to let him have, and told him I did not have the money and was behind with my creditors. He then offered me his watch as security, and I refused to take it. I could hear of him running me down after that. I never thought anything of it until I met West Darlington. He asked me what was the matter with H'omuth and myself. He told me the deceased said he would kill me. I got a letter from Manly Turner telling me that an attempt had been made to take my life the day of laying the corner-stone in La Grange, and to ask Henry Meyer about it. I watched for Henry Meyer, and when he came to town I spoke to him. He told me that John B. Carter said that I was a—[epithet used too vile and abominable for publication]; that I staid with my wife to keep from being killed; that at the Iron Front saloon that night a big fat man, whose name he (Meyer) did not know, said, “We did not get the son of a bitch to-day,” and that Homuth said, “This is not all the days.” He was sitting by deceased at the time. I asked my friends about leaving, and asked them to sell my property. After I was shot at I never ate nor slept. I slept under the influence of medicine. My brother came to me at the drug store, May 2, and told me to go to my office, that they (Homuth and Riley) were hunting me. J. F. Zwerneman told me that Homuth and Riley came down the street looking for me that evening; that they both had on pistols, and that Homuth said, “How is as good a time to settle it as any; I saw him go into the drug store.” Fritz Rosenbergtold me a few days prior to this that Homuth said it was a pity my horse did not break my neck. Dr. Smith told me that Otto Ehlinger had said that twelve or fifteen boys had been looking for me, and would have done me up had they found me. He also told me that Jake Welters said he was tired of being kicked and slapped around, and proposed to stop it. I staid at the Lester House after my house was shot into. The night before the killing I sent for Davis Jones to get to sleep with him in a room in which he slept, over the national bank, but could not find him. I then saw Ed Ory and asked him for the key to his shop door. I told him not to say anything about it, as I did not want my enemies to know where I was; that I wanted to get some rest. Ory got the key and brought it to my room and staid there for some time. I went to the shoe shop some time between the hours of 10 p. m. and 2 a. m. I went into the unoccupied room; I struck a match there. There were no sleeping preparations there as I thought there were; only an old cot was in the room. I pulled off my coat, using it for a cover. I felt safe there; none of my friends or enemies knew where I was, except Ed Ory. I slept until daylight, when I heard a hurried step. I thought it might be my servant hunting for me to tell me of my wife’s condition. I opened the door and saw it was a girl coming from the market. I lay down on the cot a while and then concluded to go home. I opened the door and looked out and saw the deceased walking on the sidewalk close to the house. I then grabbed up my gun, stepped out on the gallery, cocked it, and said, “Hold up there, Captain, I want to settle this thing with you.” He turned his head, looked at me, and threw his hand to his side as if to draw a pistoi, and I fired. He ran as if to get behind the post, and I fired the second shot as he fell, and missed him. I kept a shotgun at Dr. Smith’s office. I expected to be attacked there. When I surrendered I handed the shotgun I killed Homuth with to John Lane.
    Cross-examined: Darlington and I had a talk some time ago. I know A. F. Darnwell. I never said to him I had put off killing Homuth for six months, and that it had to be done. Hay have written to Mr. Sayles, of Gay Hill, that “I had put the killing of Homuth off for six months, and that it had to come to an end.” I don’t know whose shotgun I had, nor to whom I gave it. I gave it to some of the parties who were there when I surrendered. I know it was not mine, for I have a new one. I did not tell Dr. W. W. Lunn, while in jail, “I am no fool; I counted the cost of this matter; calculated how much it would cost me; I went into it with my eyes open.” For did I say to John Schuhmacher, “I went into it with my eyes open; I would be willing to let any jury try it.” I did not make these remarks to Lunn and Schuhmacher two or three days after the killing, while I was in jail. I sent to see them on business. On the day before the killing of Homuth, in the evening, I was out on the gallery of Dr. Smith’s office with a shotgun to see if any of my enemies were around, as I wanted to go down. Dr. Smith had treated me and left the office. At the time I killed Homuth I was armed with a shotgun and six-shooter. When I fired the second shot at him I had got off the sidewalk and gallery, and was out on the street. When I fired the first shot I was on the gallery of Ory’s house. The Ory house is on that side of the square where most of my enemies reside, and in an opposite part of the city from where my office is and my relatives and friends. From the time that I heard of Homuth’s threatening to kill me I never slept in my house except with closed doors and shaded windows. I was looking to be killed all the time. I never went into town at night without my wife; I took her along as a protection. On the night I was shot at my wife was sick, and I went after the mail by myself. I went to the post-office after the mail was distributed, and got my mail and went home. As I went in the east door of my house I stepped to one side to close it, and just as I slammed it the glass fell out and I felt my neck sting. I did not realize what was the matter until my wife screamed and asked me if I was shot. I then realized that some assassin had shot at me. I dropped down on the floor lest some one might shoot me through the open place in the door. My wife sprang out of bed, ran to me and then to the window, and began screaming and calling for Doctor Smith and then for Mr. Wilkins. I went to where she was, drew her away from the window and blew out the lights, less we might be shot. I did what I could to find the assassin, offering a reward of $500 for his capture. I was very uneasy and afraid to sleep at home. In fact my wife refused to sleep at home unless I slept elsewhere. Gus Zwerneman told me that on Friday Homuth had said to him that he would have me to kill. These things so excited me that I could neither eat nor sleep. I saw Bob Harris in town the day before the killing. I saw him with the deceased a good deal during the day. Late that evening, as I was coming from my supper at home to the hotel, Harris told me that my life was in danger; that it was dangerous for me to be on the street after dark, and that I ought to go at once and to bed. This made me afraid to stay at the hotel. This caused me to send for Davis Jones and to get the room from Ory. I did everything to avoid the deceased. I had made up my mind to leave the county in order to avoid trouble, and had tried to sell my property. When I got into that room I had no idea that deceased would pass that way. I did not know where he boarded nor where he took his meals, nor where he slept. I did not Avant any trouble with deceased, for I knew if I killed one of the Homuths it would be a life-time trouble with me. I was pecuniarily embarrassed at the time, and had no money to leaAre on. I would haA^e sold my property at a sacrifice, could I have done so, but I could not sell it. I told Mr. Bradshaw and Mr. Holloway to sell it for me.
    C. H. Faires, a witness for the applicant, having been duly sworn, testified as follows: I saw Rankin on the Monday before Homuth was killed on Thursday. He is county clerk, and it was in his office. His mental condition avus very bad. He tore up three envelopes in the attempt to address one letter. He seemed very nervous and excited. I also saw him on Tuesday morning, and he seemed still excited in the same degree. From his general appearance and actions I would not think him capable of cool reflection. I have known him a long time, • and never saw him in such condition before.
    A. T. Bradshaw, a witness for applicant, after being duly sworn, testified as follows: Before Homuth was killed, and after the attempted assassination of Rankin, he (Rankin) came to my house. It Avas Sunday evening before the killing. He was weeping and very much agitated. He said that his wife had been urging him to leave; that he was in constant fear of being killed. He asked my advice as to whether he should leave. I told him his wife was a sensible woman and a good woman, and he would do well to take her advice. Rankin’s residence is diagonally across the street from my house. Since the shooting into his house I liaAre noticed the houses of his neighbors at night. In them lights were burning, their windows were open, and their inhabitants were sitting at ease on the galleries. I also noticed Rankin’s house on such occasions. I saw no one about the house; I saw no lights; the Avindows and doors were closed and all Avas dark. At the time Rankin came to me he was not angry, but was Arery much distressed and agitated. He said that his financial condition was such that he could not well leave. He asked me if I could sell his house for him. He also asked me if he should leave the county whether he could retain his office, that of county clerk. I told him that if the condition of affairs was such that he had to leave- or to kill some one, or be killed, he had better leave and let the office be a secondary consideration. He said he would leave if he could sell. I never saw him in such condition before. I have known him a lo'ng time and intimately.
    W. A. Rankin being duly sworn, testified as follows: I am a brother of John Rankin, and live in La Grange. On last general election day Fritz Homuth tried to kill me and his brother prevented him. Two or three months ago I heard that he had threatened to kill my brother John Rankin. I have had nothing to do" for the past two months, and knowing the above facts I have been keeping a pretty close watch on Fritz Homuth, the deceased, and those who associated mostly with him, and keeping my brother informed as to their movements. Among these were Jake Wolters, George Willrich, and John Riley. A short time before the late town election my brother had a quarrel with Jake Wolters in Captain Phelps’ office. Since said quarrel I have noticed Jake Wolters and George Willrich in frequent secret consultation with the deceased. Sometimes all three "of them would be together and sometimes only two of them, and sometimes John Riley would be with them. The deceased staid the most of his time at the Iron Front saloon. The most of the time when I would see them they were in front of said saloon. Jake Wolters would see deceased at said place nearly every morning and evening. Deceased was running a farm across and down the river, to which he would ride on horseback, leaving in the morning and returning in the evening. In the morning the negro Ike Plummer would bring deceased’s horse to him at said saloon, when he would get on him and ride off. I sometimes watched Homuth until he would cross the bridge going out, and watched him come back. On such occasions Wolters was there when he left, and generally met him when he came back. I have seen Wolters with him as late as 12 and 1 o’clock at night. Jake Wolters, John Riley, and deceased would frequently at night walk around the block on which the Iron Front saloon is situated. I have several times seen George Willrich at the Iron Front saloon both in the day-time and the night-time. Wolters, Willrich, and deceased were all enemies to my brother. These occurrences took place within the last few weeks, and continued up to the time of the killing of Homuth. Since that time I have not seen Will-rich or Wolters loitering around the Iron Front saloon. On the Saturday after my brother was fired upon George Willrich left town, and I heard went to San Antonio. His wife met him. at the depot with the buggy when he returned. He got in and drove directly to the Iron Front saloon, got out and met deceased, John Riley, and Jake W.olters. His wife sat in the buggy and held the horses in front of the saloon while he and the other three men went into the saloon and had a talk. He then came out to the buggy with Jake Wolters, got in himself, and drove off. On Saturday before the killing of Fritz Homuth I was standing in the court house yard in front of the Iron Front saloon. The Iron Front saloon fronts the court house yard from the north. I saw George Willrieh, Jake Wolters, and Hat Rives in close conversation on the east side of the court house square in front of Hermes’ drug store. I saw my brother go into White & Lunn’s drug store, which is on the corner of the block, the corner of which is north of the court house square and touches the streets bordering the square. I then saw Jake Wolters go rapidly across the streets from the east to the north side of the square to the Iron Front saloon, when he met deceased and John Riley. I then went to the east side of the square to Heese’s saloon and got a drink of water. I then went to White & Bradshaw’s corner, across the street from White & Lunn’s drug store, when I saw Jake Wolters standing by a tree looking in the direction of the drug store, which I had a short time before seen my brother enter. I saw deceased and John Riley coming from toward Mehringer’s store. They came to the drug store and stopped and looked in; they then went on to the Iron Front saloon and sat down in front of same; they both had on pistols, which were in plain view. I then went to look for my brother and could not find him. After a while I found him in the back part of the drug store, and told him that Homuth and Riley had been looking for him to kill him. I had known that his life was in danger for some time, and I was keeping close watch on the actions of his enemies. My brother lives about three blocks east from the Iron Front saloon. I live about four blocks north thereof. The Lester Hotel is about one-half block east thereof, on the corner of the first block across the first street from the saloon. Ory’s shoe shop is on the west side of the square fronting east and about seventy-five yards from the Iron Front saloon. Gus Zwerneman lives in the outskirts of the town about three-quarters of a mile northeast from the square. I don’t know where Fritz Homuth boarded nor where he slept. I have frequently seen Homuth about meal time go by Ory’s shoe shop, and have also seen him go other routes. The nearest way on the sidewalk to Martin Whalen’s hotel is by Ory’s shop. I have frequently met him in all parts of town. At the time the shot was fired into my brother’s house I was in Feese’s saloon. An Italian string band was playing. I went home, Judge Stiehl going part of the way with me. I went-to bed and got to sleep. I knew nothing of the shooting until about 10:30 o’ clock, when a negro came and woke me up and told me about it. I then went to my brother’s house, and in company with others tried to trace the assassin.
    John B. Holloway, a witness for applicant, being duly sworn, testified as follows: I know approximatély the property owned by this defendant. He owns a homestead iii La Grange worth $2500 or $3000. He owns a half-interest; in a livery stable, the whole thing worth $2500 or $3000. I think this property is incumbered to the extent of $2200. He also owns a hack and two horses. He is in debt some, the extent of which I do not know.
    Here the applicant closed.
    The State introduced the indictment filed May 12, A. D. 1891, in the District Court of Fayette County, charging the applicant John T. Rankin with the murder of F. S. Homuth in the county of Fayette on the 7th day of May, A. D. 1891.
    The State introduced in evidence the copias issued out of the District Court of Fayette County by virtue of said indictment, commanding the sheriff or any constable of Fayette County to take the body of applicant and him produce before the District Court of Fayette County at its present term, to answer said indictment, said copias being issued May 13, 1891.
    The State here introduced the return of B. L. Zapp, sheriff of Fayette County, in answer to the writ of habeas corpus issued and served herein, showing that he held the said John T. Rankin, applicant herein, by virtue of the aforesaid copias issued as aforesaid.
    Dr. W. W. Lunn, a witness for the State, being duly sworn, testified and detailed the position and character of the wounds on the body of the deceased as heretofore given, and further said there were four shots in the upper arm. From their location and their position with reference to the shots in the breast I judge the upper arm must have been about three inches from the body at the time the wounds were made. I am unable to tell the probable position of the lower or forearm.
    The witness was here asked the following questions by the State: Did John Rankin, the applicant, while confined in the county jail, state to you on the Sunday after the killing of Homuth that he was no fool; that he went into this thing with his eyes open; that he knewhow much it would cost him, had calculated the cost, and how much it would take to get him out of it; that it would take all he had? To which question applicant by counsel then and there objected, for the reason that at the time mentioned therein the applicant was under arrest and. confined in the county jail of Fayette County, in the custody of the sheriff of said county, charged with the murder of F. S. Homuth, and he was not warned that such statement would be used against him; and said objection being overruled by the court, applicant excepted. Whereupon witness replied that applicant did make such statement.
    The applicant by counsel thereupon moved the court that said question and answer be excluded for the reasons stated in his objection to said question; and the court having overruled said motion, applicant then and there excepted to such ruling of the court.
    The witness further testified: After John T. Rankin’s house was shot into I said to him, when he was talking to me about the matter, “John, there are twenty-five men in this town who would have been glad if that shot had killed you.”
    John Schuhmacher, a witness for the State, being duly sworn, testified as follows: On the Sunday after the killing of Homuth I had a conversation with John Rankin in the county jail of Fayette County where he was confined and under arrest for the killing of Homuth. I said to him, “I am sorry you got into this trouble.” He replied, “I had to do it; I could not get around it. I could not afford to be run out of the county by such a man as Fritz Homuth. I am no fool. I went into this matter with my eyes open. I have calculated the cost and I know it will bankrupt me. I will soon get out of it, and am willing to be tried by any jury except by a few of my enemies.” Applicant objected to said evidence at the time it was offered, and moved to exclude the same after it had been admitted, for the reason that at the time said statements were made applicant was under arrest, in custody of the sheriff of Fayette County, in the county jail of said county, charged with the murder of F. S. Homuth, and that he was not warned that such statements might be used in evidence against him; which objections being overruled by the court, applicant by counsel excepted.
    ■C. J. H. Meyer, a witness for the State, being duly sworn, testified as follows: I did not tell Rankin that John Carter called him a — [epithet too vile to be printed or repeated]. I did not tell him that Fritz Homuth said on the day the corner-stone was -laid, “There are more days than this one; we will get the son of a bitch.” What I did tell Rankin was, that down at the barbecue as he drove up in the buggy with his wife John Carter made some remark, when the crowd laughed. John Carter, Dr. Brewer, Fritz Homuth, and some others were in the crowd. That night in front of the Iron Front saloon I heard a party sitting by Homuth remark to him, “The —- son' of a bitch was quite a ladies’ man to-day.” I thought they were talking of Rankin, and so informed him. Ruff Homuth, brother of the deceased, approached me some days since and talked to me about this case in such a manner as to lead me to go off and arm myself. When he talked to me he was very violent, and appeared to be very angry at me, and said he did not want any lies sworn to.
    John Schuhmacher, recalled, testified as follows: I was in my storehouse and heard the two shots fired the morning Homuth was killed. I ran to the door and saw Rankin standing either on the edge of the gallery or on the steps. I saw the deceased staggering and saw him fall. John Rankin then ran around the body of deceased, toward the court house square, and seemed to be watching the deceased as he ran off. I got to where Homuth was lying in about ten minutes; deceased was lying on his face. Somebody said he had been turned over. When I got to the body the hobby-horse man and the butcher, Rethke’s man, were there already. It is about one hundred and eighty yards from where I was standing to where the body wps lying. At that distance it is difficult to state whether a man standing in front of the gallery is right at it or several feet away, I saw Rankin shoot the second shot at Homuth, and at that time he was on the steps of the gallery of Ory’s house, or close to the steps, and acted as though he was going to shoot the third shot. The deceased’s vest was buttoned down over the waistband of his pants. I saw no arms, but saw under his vest what I took to be the impression of a pistol.
    T. S. Brown, witness for the State, testified as follows: I am a merchant. Had opened up my store in the morning of the killing and saw deceased pass by the door. Have seen him pass nearly every morning for three weeks. I went to the back part of the store to cut some bacon for some one. Heard the first shot and started for the door. I heard the second shot and saw Rankin, after I heard the second shot, coming off or just about at the edge of the gallery. I went to the body of Homuth. Butcher Rethke’s man was there; he had turned the body over. The body was lying about thirty feet from the gallery. I have not spoken to John Rankin for three or four years. A few minutes before the shooting a man whom I don’t know, never saw before, and have never seen since, came by my store and asked for a shoe shop. I looked over at Ory’s shop and noticed that both doors were closed. I am an enemy of Rankin. I noticed the door was closed. Don’t know who the man was who asked me for a shoe shop. He wanted some work done. Homuth boarded at Whalen’s hotel, and in going to and from his meals passed directly in front of Ory’s'shoeshop, where he was shot, for at least three weeks before he was killed. I had seen him going that way every morning to his boarding house.
    Julius Pfeiffer, a witness for the State, being duly sworn, testified: I work for Rethke, the .butcher. When the second shot was fired Rankin was either a foot and a half inside or a foot and a half outside the door of Ory’s shoe shop, I don’t know which. I was the first one to the body; staid there about ten minutes and went after Mr. Rethke, who is a brother-in-law of Homuth. I turned the body over; he was not then dead, but soon died; saw no pistol. I was the first man to get there; the hobby-horse man was next, and the next a stone cutter. I have been in this county only about three months, and have been working for Rethke, the brother-in-law of deceased. When the first shot was fired I turned around and looked out and saw the second shot fired. I am positive that the second shot was not fired after Rankin left the gallery.
    Julius Meyenberg, a witness for the State, testified: My place of business is on the west side of the public square. Heal Robinson’s house is between my house and Ory’s shoe shop. When the first shot was fired I was between Hermes’ drug store and Rehman’s saloon. When the first shot was fired I got upon a bench and heard Rankin sa,y as he came across the street, “Damn them, I’m getting them,” or “Damn him, I got him;” I don’t know and can’t tell which it was. At the time he was saying this he had unbreeched his gun and was trying to get cartridges out of his pocket to load it. I am not friendly toward John Rankin—that is, I am not particularly stuck on him. I ran for city secretary and Rankin opposed me, and I have not been friendly with him since then. Ed. Rehman, who was there, heard what I heard. I am a friend of John B. Carter, Dr. J. C. B. Renfro, Real Robinson, and B. L. Zapp, who are not friendly to Rankin. I am not particularly friendly to George Willrieh or Jake Wolters.
    John Riley, a witness for the State, being duly sworn, testified: I went with Fritz Homuth on the Saturday evening preceding his death to Mehringer’s store. Homuth went there to get a pair of shoes for his nephew. We went inside the store, and after Homuth had attended to his business we returned to the Iron Front saloon. We did not stop at the drug store, nor at the barber shop. I did not hear the deceased say, “Row is the time to get the damned son of a bitch; I saw him go across the street into the drugstore;” nor anything like that. I was right by him, and if he had said it I would have heard it. I suppose Homuth was armed at the time; he was always armed, but I did not see his pistol at that time. I decline to answer the question whether I was armed or not at that time. I decline to say whether I was armed or not. I am a gambler by profession. I came from Columbus to La Grange, and have been in La Grange about two months. I went from Lockhart to Columbus, but was not in Columbus a great while. Before going to Lockhart I had lived for a while in Hays County. . Fritz Homuth was a friend of mine; I was with him a great deal. My most particular friend was Steve Wilson. Wilson and I slept together; he was a gambler, too. I do not know where Steve Wilson is at present. He left La Grange the morning after Rankin’s house was shot into. He came back the night before Homuth was killed, and left the same day the killing occurred; has not been back since. I do not know where he went nor where he is at present. I have heard Homuth talk some about Rankin. I don’t think he liked Rankin. He said that if Rankin ever run onto him he would protect himself. I can’t say that Homuth ever threatened to kill Rankin. I can’t say that Homuth did not threaten to kill Rankin. I don’t say that I did not tell some ladies in the town of La Grange that Homuth had threatened to kill Rankin. If any lady was to say that I told her Homuth had threatened to kill Rankin I would not dispute her statement about it. It is not a fact that Fritz Homuth was out of town the greater part of the time during the past six weeks. He was out very often in the day-time, but always in town at night. I do not say that I have not told some men that Homuth had threatened to kill Rankin; he talked in that strain. I do not live long at any one place, nor does Steve Wilson; we are transient persons.
    B. L. Zapp, witness for the State, being duly sworn, testified as follows: I am sheriff of Fayette County. F. S. Homuth was my deputy, and had been for four years. He was a gambler, and I knew it. He associated with persons known or supposed to be gamblers, and with me and other good men. He never took the oath of office, nor was a commission ever issued to him as a deputy. He never executed any process or performed any duties as a deputy sheriff during the four years he was deputy that I know of. I made him a deputy sheriff in order that he might legally bear arms, and because I knew I could depend on him in case of emergency. I knew him to be an enemy of John Rankin; several of my deputies are enemies of Rankin; I myself am an enemy of John Rankin. The law allows me three deputies for La Grange, and one in each justice precinct of the county. I have about forty-five deputies that I know of; I don’t recollect them all; I don’t keep any list of them. When the law was passed two years ago limiting the number of deputies I applied to Congressman L. W. Moore, and he told me the law was unconstitutional. I talked to Senator Lane, and he admitted that I had a right to hold on to the deputies I had already appointed until my term was out, last ¡November. George Hall, Hat Rives, Fritz Homuth, and Lewis Homuth were and are now, excepting Fritz and Lewis, who are dead, deputy sheriffs in the town of La Grange. All are enemies of John Rankin. Hone of them have taken the oath, except probabty Hat Rives. A great many of my deputies are enemies of John Rankin. Ruff Homuth, a brother of the deceased, is also one of my deputies. I never at any time took steps to disarm the enemies of John Rankin. I thought at one time of disarming Rankin; but, being an enemy of his, I feared I might have trouble, and I told the marshal to do so. Since Rankin has been in jail I have had all letters addressed to Rankin, as well as all letters that he would write, opened, examined, and read. I learned this from Rankin when he was sheriff, and I do so with all prisoners. One letter that he had written to Barry Sayles was opened and sent to the grand jury, but I knew nothing of it until it was done. I took a prisoner out of jail who said he was a friend of Fritz Homuth, and let him have a private talk with Ruff Homuth.
    Isidor Mehringer, a witness for the State, being duly sworn, testified: Fritz Homuth, deceased, was in my store on Saturday, May 2. He came in and told me to let Lewis Homuth have a pair of pants and a pair of shoes and charge it to him. John Riley was with him. If they came down the sidewalk at any time and did not come in I did not see them. I saw no arms on their persons. I did not look for any arms; they might easily have been armed and I not have seen the arms. I did not look at the waistbands of their pantaloons, but noticed their faces.
    
      A. J. Brown testified for the State: I live in La Grange; am a carpenter. This morning, at the request of R. S. Homuth, I went to the Ory shoe shop to make certain measurements. The plan here shown me is one that was drawn of said house and surroundings. The shop is a one-story frame building on the west side of the public square, fronting east. There is a two-story building between it and the corner of the street north. I measured the Ory shoe shop. It is 28 feet 4 inches long, on the street. There are two front rooms, a gallery in front, and a door to each of said rooms. The two doors are near each other in front. The north room was vacated. The gallery in front runs from the door down to the sidewalk, and is 8 feet 4 inches wide. The sidewalk in front of the building is 12 feet wide. I measured from the door of the north room to a place shown me as the place where the first blood was found, and found it to be 28 feet 8 inches in a southeasterly direction from the said door. I also measured the distance from said door to the place which was pointed out to me as the place where Homuth fell, and found it to be 67 feet in a southeasterly direction, and also measured the distance from the outer edge of the sidewalk to the front where Homuth’s body lay, and found it to be 15 feet. The plan shown me now is a correct one. I did not make it. Hr. Hat Rives made it. I helped him to do it. I can make a diagram, but did not make this one. I also examined the front door of the north room; in the door is a hole near the center of the door about an inch in size. I closed the door, went on the inside and looked through the hole .east to see how far I could see. I could see a man walking anywhere from north of the door around the north side of the public square, down along by the Iron Front saloon, across by the hotel and up as far as Bradshaw’s butcher market, east of the Rankin & Zwerneman livery stable. I could see a post which stands at the edge of the sidewalk north of the place spoken of, just in front of the old Frick building; could see that plainly.
    [The plat referred to is omitted, as the evidence sufficiently explains the position, etc., of the parties.]
    T. S. Brown, a witness for the State, being recalled, testified: I showed A. J. Brown where the first spot of blood was. There was no blood there when I showed him the supposed place, but I had seen the spot of blood the morning Homuth was killed, and showed Brown where I thought it was. I also pointed out the spot where Homuth’s body fell.
    Ruff Homuth, a witness for the State, testified: The usual manner of the deceased’s walking was with the two fingers of the left hand caught in the pocket of his pantaloons and the right arm swinging at his side with a long swing, and he always walked with his head rather down.
    L. L. Scanling, a witness for the State, being duly sworn, testified: I am the proprietor of the hotel, the Lester House. There are forty bedrooms in the house. Six or eight rooms in the house have no openings upon the street. It is a two-story brick house. The sleeping rooms are on the second floor, and there are six or eight bedrooms which have neither doors nor windows facing upon any street. They are all in the second story of the hotel.
    
      Brown, Lane & Jackson, Jones & Garwood, and J. T. Duncan, for appellant.
    
      R. H. Harrison, Assistant Attorney-General, and Phelps & Wilbrich, for the State.
   DAVIDSON, Judge.

The relator in this case was indicted by the grand jury of Fayette County for the murder of F. S. Homuth. Application for bail was made. Upon the hearing thereof and the evidence adduced on the trial the learned trial judge refused bail and remanded the applicant to custody. From said judgment refusing him bail the applicant prosecutes his appeal to this court.

After a careful investigation of the facts as presented to us in the record, we are of the opinion that the applicant is entitled to bail.

It would be manifestly improper for us to discuss the facts or give our reasons for the conclusions reached, in view of a trial to be had upon the indictment before a jury and on the merits of the case.

The judgment refusing the relator bail is reversed and bail is granted him in the sum of $8000, upon giving which in the manner and form prescribed by law he will be released from custody; and it is ordered accordingly.

Reversed and bail granted.

Judges all present and concurring.  