
    Ex Parte Charles Henseley.
    
      No. 7501.
    
    
      Decided June 24.
    
    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 accused is entitled to bail.
    Habeas corpus on appeal from an order in chambers issued by Hon. W. W. Wallace, Judge of the Forty-seventh Judicial District.
    Applicant was charged with having murdered John Seela, in Potter County, on June 11, 1891. An examining trial was held before a justice of the peace of said county, and applicant was committed to jail without bail. He applied for and obtained the writ of habeas corpus, and upon a hearing thereof was remanded to custody without bail.
    The evidence adduced on the hearing of the writ was as follows:
    James Drummond, for the applicant, testified: My name is James Drummond. I was in Jack Ryan’s saloon, in Amarillo, Potter County, Texas, on the night of June 9,1891. I heard shots fired. I was reading a paper. I heard John Seela say, “G—d damn you.” I then looked up. I saw Mr. Henseley spring backward. At this time John Seela made two or three steps toward Charles Henseley, the relator in this case. I was sitting on the north side of the house, about fourteen feet from the front door. Mr. Henseley was about half way from the door to the middle of the floor. Henseley was in the room when I went in the saloon. He was standing at a billiard table back of the room. Did not see Seela when I went in the saloon. I had been in the saloon about ten minutes when I heard Seela say, “G—d damn you.” I did not know who it was until I looked up. I thought he was talking to Henseley, because he was close to him. Did not see the men at all until that time. Did not know whether any licks were passed before that or not. As near as Mr. Seela got to Mr. Henseley was about four feet. Henseley then went to draw his pistol, and Seela turned and went behind the bar. Henseley then ran toward the bar, leaned over the bar, and shot. I could not see Seela at this time. Mr. Henseley ran around at the east end of the bar. Henseley then shot again. I saw Mr. Murphy come in there.. Henseley then stepped about one step in behind there and shot again. After Seela went behind the bar I never saw him until he was brought from behind the bar. I do not know, prior to the words “G—d damn you” passed, how near they were together. The reason I thought Seela said “G—d damn you” to Henseley was because I saw them facing each other, about four feet apart, and no one else was near, and because Henseley was backing and Seela was advancing toward him.
    Frank Martin, witness for relator, testified: I was, on the 9th of June, 1891, in Amarillo. I heard a shot fired. After hearing the shooting I ran over to Jack Ryan’s saloon and found John Seela and the relator both wounded. Seela was behind the bar when I got in the house; he had a knife (shut) in his hand. I handed the knife over to Sheriff Warden. John Seela was lying down behind the bar. Lon Louis was lifting him up. Seela told him to help him up, as he could not walk. I met Mr. Henseley in charge of Mr. Murphy as I went in at the door. I have been acquainted with Mr. Henseley about two years. I do not know of their having a difficulty, nor had heard any threats made previous to this nor at any other time. I have stated all that I know with reference to this matter. I did not stop to speak to any person as I went in. I passed on the left of Mr. Henseley as I went in at the door. I went in in a hurry. I saw Mr. Henseley had blood on his coat and shirt, his hand to his side. He had on a white shirt, and his coat was black. Prom the time I heard the last shot fired I had run about a hundred feet when I saw the relator with blood on his shirt. It might have been one-half minute or a very short time from the shooting to seeing Henseley with blood on him. ■
    J. W. Murphy, a witness for the State, testified: I was constable of Precinct PTo. 1, and about 8 o’clock that night I was in Amarillo, Potter County, Texas. About 9 o’ clock I passed through the bar room of Jack Ryan into the back or gambling room. I was standing at Jack Thorn’s table. Had been standing there about a minute when I heard a pistol shot. I turned and looked into the bar room and saw Charley Henseley with a pistol in his hand, and about that time he fired. I ran into the bar room, and he fired another shot. I ran up to him then and demanded his arrest and took his pistol from him. After I had arrested him I took him across the street to Prank Anderson’s saloon. A doctor was sent for, and Henseley was taken to my room,- where his wound was dressed. The firing took place in Jack Ryan’s saloon. My back was to the door,, about three feet from the door leading from the back room to the bar room. I did not hear anything except some talking. I had seen Mr. Henseley before the shooting standing in the saloon by the bar. I saw John Seela standing near the east end of the bar as I passed through. I never noticed Mr. Drummond there. I did not pay any special attention as to who was there. There were several parties present. When I turned round there were not so many people there as when I went in. Two that I know, Mr. Henseley and Virgil Womack, were present. When I first saw Mr. Henseley with his pistol he was pointing it downward., I could see no object he was shooting at. When I first saw Mr. Henseley shoot it was the second shot that had been fired. He was at the east end of the bar when he fired the shot. He was standing up, pointing his pistol a little downward. After the second shot was fired, or the first one I saw, he fired the second shot that I saw him fire. He stepped about one step forward behind the bar. He pointed his pistol a little downward. I saw Virgil Womack behind the bar when the two last shots were fired. Mr. Henseley was shooting in the direction of Womack, only a little down and between him and the bar. When I heard the first shot fired. I was about three feet inside the gambling room. There were Jack Thorn and Dave Sims in the gambling room then. I could see no object in the east end of the saloon when I turned around. From where I was standing I could see all the bar, part of the north, part of the south side, and all the west end. When I walked in I could not tell what became of Thorn and Sims. I don’t think it was but about a minute from the time I entered the saloon until I heard the shooting. I don’t remember that I saw any one else in there. If there had been any one in the center of the room or near the bar I could have seen them. I arrested the relator as soon as I could get to him. About one-half minute after I arrested the relator I discovered that he was wounded. I saw blood on his shirt. The wound was in the left side. If any object had been in the east end or southeast corner of the saloon . I could not have seen it when I first entered the room. When I entered the door I could have seen objects in the east end and southeast corner of the saloon had I looked that way, but did not look. My eyes were directed toward the bar. When I went to Mr. Henseley I went between the north side of the billiard table and the north wall of the saloon.
    Dr. B. E. Gore, witness for the State, testified: I am a practicing physician and surgeon, and have been for about eleven years. I was called upon on the 9th of this month to see Mr. Seela in Jack Ryan’s saloon, in the town of Amarillo. I found him with a gunshot wound about six inches below the hip joint, a little inward, on the left thigh. I can not tell the course of the ball after it entered the cavity, but it came out on the right side about six inches above the joint. The ball was cut out on the right side by Dr. Cartwright and myself. After I saw the patient in Jack Ryan’s saloon he was carried to what they call the dance hall across the railway. I visited him three times after he was moved to the dance hall. John Seela is dead. That gunshot wound caused his death. He lived about thirty hours, and died about 3 o’clock on the nig’ht of the 10th, I think.
    Dr. J. W. Cartwright, witness for the State, testified substantially the same as did Dr. Gore, with the following addition: We made an effort to probe for the ball but could not probe through, but the course of the ball was upward, directly toward where it came out. From the range of the ball he could not have been standing up. That is, one or the other must have been down.
    Dr. Thomas McGee, witness for relator, testified: June 9, 1891, I was called to see relator professionally. I found him wounded with a sharp instrument. The wound was about four inches below the nipple, and between the tenth and eleventh ribs. I probed it and found the depth of the wound to be about one inch. It did not reach the cavity; it lacked about one-eightli or one-fourth inch of reaching the cavity. • The wound was on the left side. The wound was about three or four inches to the left and downward from the heart. A sharp instrument might have struck or glanced a rib. The wound was about one-half an inch in length, and about the width of a knife blade. When I visited him there on the night of the 9th I found it a fresh wound; it was bleeding. I am a physician and surgeon. I did not consider it of itself a dangerous wound. -Had this instrument penetrated one-eighth or one-fourth inch further it would have entered the spleen, and it would have been a dangerous wound and would probably have resulted in death had not the hemorrhage been controlled.
    Bella C. Quaie, witness for the State, testified: I knew John Seela in his lifetime. I am acquainted with Mr. Henseley. About ten days before the shooting Mr. Henseley came down looking for one of the ladies of the house; came to the dance hall. Mr. Henseley called Mr. Seela a son of a bitch. Mr. Seela said, “ Charlie, don’t call me that. If you want to whip me we will go outside and have-it out.” I stood right by the bar when these words passed. I saw nothing else. I have not seen Mr. Henseley since. That was the 30th day of May. I have seen Mr. Seela every day since this difficulty up to the day of his death. He died in the dance hall. I was present at his death. At the time of this difficulty between the relator and the deceased in the dance hall he (John Seela) was the keeper of the dance hall. I know, for the reason that I am an inmate of the same hall. I saw no gun. He (Mr. Henseley) came to see Ella Hill. The night of the difficulty Ella was an inmate of this house—the dance hall.
    Ella Hill, witness for the State, testified: I am acquainted with Mr. Charley Henseley. Have known him about three years. Have during these three years been residing- at Wichita Falls, Quanah, Childress, and Amarillo. Since I have been in Amarillo I have been living at John Seela’s dance hall. I was not there on the night of the 30th of May or at the time of the difficulty. I know no other Ella Hill there. I.have been there pif and on for two years. I believe I did hear Mr. Henseley speaking of a difficulty with John Seela. I met him (C. Henseley) at Clarendon, and Mr. Henseley asked me how. all were getting along. He said he and Mr. Seela had a few words at the house, and he hoped that he might meet him some time and have the same show over him that he had over me. Henseley said he had the law on his side and was going to use it on Seela. I asked him what was that law. He said for selling whisky over the bar down at the dance hall. I have stated about all that I know of that conversation. This conversation between me and Mr. Henseley was about a week ago. I met Mr. Henseley in Clarendon about a week ago at the hotel. I was on my way to Childress. We accidentally met there. In this conversation in Clar- ■ endon, the relator told me that John Seela had drawn a gun on him during this difficulty at the dance hall. He told me that he was going to get even with him (John Seela) on the law, because Seela was violating the law, selling whisky without license. The relator made no threats against the person of John Seela. Mr. Seela never made any threats against the applicant herein that I heard.
    Carrol Norris, witness for the State, testified: On the 9th of this month I was at Jack Ryan’s saloon. I saw a difficulty between John Seela and Mr. Henseley. Mr. Henseley walked in and asked Mr. Seela did he have his gun. Seela told him, “Ho. Do you want one?” Henseley said, “Ho; I only wanted to knoAV if you had one.” Mr. Henseley said something; I do not remember what it was. Then Henseley slapped Seela on the side of the face. Then Seela ran up tó Henseley and Henseley ran backward nearly to the door and pulled his gun. Seela ran around the end of the bar and stooped down, and I neA^er saw him any more. Mr. Henseley ran in about three feet of the east end of the bar and shot over the bar. He then ran to the end of the bar and shot again. He then stepped about a foot or two inside the bar and shot again. By that time Mr. Murphy was in there and had taken Mr. Henseley. I was standing in front of the bar, leaning-on the bar, when the talk came up. I was not back of the bar at any time. I was about two feet from these parties when these words passed. When the shooting came up I stepped away from the bar. Mr. Seela Avas in the room first. Mr. Seela and I walked to the bar together. I Avas with Mr. Seela when Mr. Henseley came up, but not talking to him. Mr. Henseley came in at the front door. Mr. Henseley first spoke to Mr. Seela, and the first words Avere, Mr. Henseley asked Mr. Seela if he had a gun. I am 22 years old the 26th of last March. I haAren’t got any occupation; am not doing anything now. I liaAre been here about eight months. During that eight months I haAre been running a game here. I haven’t been doing anything else. I never worked for John.Seela." I came from the outside of the house in company with John Seela to the bar of Jack Ryan’s saloon. I had said nothing to him nor had he said anything to me. I had not spoken to Seela at the bar. We were standing about two or three feet apart. I had not seen Henseley until he began talking to Seela. My face was to the bar; I was leaning on it. Mr. Henseley came in from the front end of the saloon. The conversation was in a very ordinary tone. I did not hear Mr. Henseley say, “John, why did you draw that gun on me?” Mr. Seela ran right up to Mr. Henseley. I will swear that I never saw anything in Seela’s hand. Seela only ran up to Henseley and stopped. The defendant ran backward nearly to the door. I never moved until the gun was pulled, but was looking all the while. I was not apprehensive of danger at that time. When the gun was pulled I walked toward the center of the room. When the second gun was fired I walked toward the front door. I took no steps after the last shot was fired. During the time from the firing of the first shot up to the firing of the third shot I was walking toward the door, looking backward at the party shooting. At the firing of the first shot I had just stopped. When the pistol was drawn I was standing near the center of the bar. I did not notice any one else at the time of the shooting except the bartender and the parties concerned. Can’t tell how many persons were in the saloon when I came in. I saw one railroad man, dressed with a stiff hat. Don’t know where he worked. He was getting some change. I did not see Mr. Murphy until after the shooting had commenced. Mr. Murphy came in from the back door of the saloon before the shooting was over. When the third shot was fired he came and got Mr. Henseley. When he came in from the back door I was standing near the center of the floor. After the first shot was fired, when defendant slapped Seela, the railroad man was between me and Seela. I saw no one else on the other side of Seela.
    Sam F. Dunn, witness for the State, testified: On the evening of the 9th of June I was in Jack Ryan’s saloon. I saw a difficulty between Charles Henseley and Mr. Seela. I was standing at the end of the bar reading a letter. There was a crowd at the bar. I saw part of that crowd break off and run out at the door. I saw John Seela run behind the bar. I saw Mr. Henseley step up on the foot rest in front of the bar and fire a shot over the bar in the direction of the floor. He then stepped to the end of the bar and fired two shots downward. That was all I saw. I then ran out of the house. When I returned to the house I met Mr. Henseley at the door. He told me to get him a doctor. I think he says, “He has stuck a knife in me.” I went and got Dr. Gore. Before I went after the doctor I got up on the foot rest in front of the bar and saw Lon Louis helping Mr. Seela up. Mr. Seela was almost on his feet, with Mr. Louis supporting him behind the bar, when I first saw him. The bar is between three and four feet high; about four feet high. I did not see Mr. Seela at the time Mr. Henseley was shooting. I did not hear Mr. Seela say a word at the time. I was reading a letter aloud to two stockmen, and paid no attention to what was going on around me. Mr. Seela was about 5 feet 8 inches high, and would probably weigh 140 pounds. Mr. Henseley is about 5 feet 10 or 11 inches high, and weighs about 160 or 170 pounds. I saw Mr. Henseley at the time of the shooting. I don’t think he was cool; I did not hear him say a word. The first thing that attracted my attention was seeing Mr. Seela run behind the bar. The next thing was seeing Mr. Henseley fire the shot over the bar. The relator was excited at this time. I am acquainted with that bar. I am behind that bar off and on all during the day. I see pistols there so often that I would not pay any attention to them there, or would not notice if there were none. The deceased has been in this town ever since Jack Byan has had a saloon here. The deceased was a saloon man himself at the time of his death; ha'd been for over a year. Deceased frequented Jack Byan’s saloon daily, and I have seen him frequently behind the bar of that saloon. The public could not see the place where the pistols were kept. To see those pistols one must go behind the bar. When travelers or cowboys come to this town they frequently put their pistols behind that bar. There is a little place divided for setting bottles behind the bar about two feet from the floor. There is a vacancy between these holsters and the floor. Any one behind the bar could see the pistols. A water pitcher is generally there that would hide the pistols from one at the end of the bar. The defendant was about two feet inside of the bar and about four or five feet from the pistols when the last shot was fired. There is room underneath where the pistols were kept for a man to crawl under. There is a zinc tub generally sitting somewhere under the rinse tub. If the tub had been under the bar there would also have been room for a man the size of the deceased to have crawled under. The bar is about fourteen feet long. It is a fact that Jack Byan keeps a lot of demijohns under the bar. The deceased had proceeded two or three feet behind the bar before he disappeared from view. A man in a half stooped position behind the bar would be hidden from view. His hands then would be in reach of the pistols. I saw the first shot fired over the bar. After the discharge of the first shot there was considerable smoke behind the bar. It is a fact that in proportion to the space would be the density of the smoke. The smaller the space the more dense the smoke. The room was ordinarily lighted up—lamps situated so that one could see behind the bar. The pistols are sometimes kept in the first tier of holes, sometimes the second, sometimes the third, and sometimes in all. A man of ordinary size on his knees would be below these pistols.
    
      P. V. Womack, witness for the State, testified: On the 9th day of June I was tending bar for Jack Ryan. I was there when a difficulty occurred between Mr. Henseley and Mr. Seela. I was waiting on some customers at the bar. I was behind the bar at the time. I do not remember who these customers were. The room was lit with lamps. It was very light in the room. The first I knew of the fight was when Mr. Henseley stepped back and pulled his pistol. Then Mr. Seela was standing near the east end of the bar, and when Mr. Henseley pulled his pistol Mr. Seela stepped behind the bar and stooped. I was near the center of the bar, behind it. Mr. Seela went crawling round behind the bar after he had stooped down, hands and knees on floor, crawling. Mr. Henseley came forward near the end of the bar on the outside and reached over the bar with a pistol in his right hand and shot at Mr. Seela. Then Mr. Henseley stepped to the end of the bar and shot at him. In the meantime Mr. Seela had crawled three or four feet toward the west end of the bar between the first and second shots. When the second shot was fired Seela was trying to crawl under the'bar and was lying down with his face toward the back of the bar. He was getting-back under the bar. His body was under the bar, but his legs were out. I don’t know whether he was hid or not. His legs were not hid. I could not say whether he could see him or not. When Henseley shot the second shot I was not looking at Mr. Seela, but at Mr. Henseley. From the second shot fired I never saw Mr. Seela any more. I never saw him get his legs under the bar. When the second shot was fired I was nearly against Mr. Seela—against the base shelf; between him and the base shelf. I couldn’t tell where either shot struck. I did not notice when the pitcher was broken—I think at the third shot. After the second shot I walked toward Mr. Henseley and got near enough to touch Henseley. Henseley then fired the third shot toward Mr. Seela, toward the end of the bar. Mr. Seela did not try to get any weapons as I could see. He was trying to get under the bar. I was looking-first at one and then at the other. When the second shot was fired I was looking at Mr. Henseley, but a moment before the second shot was fired Seela was lying on his right side, his face toward the base shelf. Just enough time had elapsed between my looking at Seela and when I heard the second shot for me to raise my head. When the third shot was fired I was looking at Mr. Henseley. I never saw Mr. Seela any more until he was led out by an officer. I did not know Mr. Henseley’s name at that time, but I knew his face. I had seen Mr. Henseley before on that day in the evening. I saw him around the saloon there. I never saw the pistol with which the shooting was done until this time. The bar is about fifteen or sixteen feet long and near twenty inches wide on the top. There is an offset at each end. The bar is two feet wide at each end, or may be more. Underneath the upper part of the bar there is a back shelf reaching from one end of the bar to the other. This shelf is nearly two feet above the floor. This shelf is lined on top with copper or something like that. That shelf is about eighteen inches wide. About the center of the bar in the back shelf there are some pockets for putting bottles. When this difficulty occurred there were pistols in these pockets. I could have seen them if I had looked. I was watching Mr. Henseley and Seela near the center of the bar. Mr. Seela did not try to get any of the pistols during the. time that I saw. If he had tried to get the pistols I think I would undoubtedly have seen him. I saw Mr. Seela after he was wounded. I saw Mr. Henseley shoot each shot that was fired. Mr. Henseley said nothing that' I heard while the shooting was going on. Before the shooting Mr. Henseley walked up to Mr. Seela and asked him did he have a pistol. Mr. Seela said, “Ho, I have not. Do you want one?” His manner of addressing Mr. Seela seemed in a friendly manner. He did not speak as though he was mad. When Mr. Seela said “Ho, I have no pistol,” Mr. Henseley told him he only wanted to know if he did, and said he did not want one but only wanted to know if he did. I saw the parties while they were talking. I was waiting on a customer and turned my face from them. I could not tell exactly what I did. I heard a noise afterward and turned. I heard Mr. Henseley speak about one minute after the shooting, and told Mr. Murphy he was stabbed. When Mr. Seela answered Mr. Henseley he spoke as he always speaks. I could not tell by either of their talks that there was hard feelings between them. Between the base shelf and the ice chest there were two shotguns, right at the end of the bar where he went around. Those guns have been there ever since I have been there; sometimes one, sometimes two, and sometimes three. Mr. Sepia made no effort to get those guns. Where those pistols were there is no way to reach them from the under side. Mr. Seela would only have to reach up over the shelf to get them. He might have had to change his position to get them, but am not certain that he would. He was lying on his right side. These pistols were in a sink about six or seven inches deep, about four inches square. These receptacles were about six inches back from the front end of the bar. There is one upright between where he went to and where he came from. Mr. Seela did not pass this upright. On the night in question there were two or three pistols behind the bar. I do not know whose pistols these were. I could not swear whose they are. There were no other guns, only those shotguns. There were no pistols on that base shelf or anywhere else except those spoken of. I looked for the shots and saw no other guns or pistols. I never heard Seela say “God damn you,” after Mr. Henseley said, “I only wanted to know if you have one.” I heard others talking, but don’t know what it was. There could not have been an attempt upon the part of Mr. Seela to get a pistol while the shooting was going on unless I had seen him. At the time of the second shot I was about two or three feet from Seela’s head. He was down; Henseley was up. I could not see Mr. Seela while I was looking at Mr. Henseley. There were three demijohns under the east end of the bar. These demijohns were abont a foot across the rinse tub, but would take up about two feet. Hnderneath the bar at the west end there was one demijohn. Between these demijohns there was about eight or nine feet of space.
    T. B. Renison, witness for the State, testified : I am acquainted with Mr. Henseley. I saw Mr. Henseley on the night of the shooting in Jack Ryan’s saloon, standing in the front door of Jack Ryan’s saloon. I don’t know that I had any conversation with him. When I walked by the door and stopped he was talking to some boys and asked some of them to take a drink. He said he would like to borrow a pistol from some of the boys, that he might take it and give it to some other man. He said that he wanted to run it up some fellow to see whether it would hurt him or not. This was after dark, fifteen or twenty minutes before the shooting occurred. I did not know who he was talking about. He did not seem to be talking to any one. Mr. Gilmore was there at the time.
    James R. Gilmore, witness for the State, testified: I am acquainted with Mr. Henseley. I was down at the dance hall about the 30th of May when a difficulty occurred between Mr. Henseley and Mr. Seela. I heard some one, I suppose Mr. Henseley. I was in the room with the door shut. He asked for Ella somebody, and they said she was not there. He said, “You are a lot of liars,” or something like that. I did not see the man or the women during the passing of these words. He said he could whip any son of a bitch in the whore house, or something that way. About that time I opened the door of the room I was in and stepped out, and Alice St. Clair, I believe, said, “I will go and tell John Seela what you have said.” Mr. Henseley said, “Go and tell him if you want to.” She went in to where John was in the bar room and Charlie Henseley went out that way and I followed along. About the first I saw was John Seela coming up to the end of the bar with a pistol. Mr. Seela said something, I do not know what, and Henseley replied, “Yes, I did say it.” I turned back, and that was all I saw. I heard this woman telling him something, I don’t know what. I saw Seela coming up with a pistol. It not being my fight, I turned and went back. I saw Mr. Henseley during the day before the shooting, ten or fifteen minutes before the shooting occurred. I saw Mr. Henseley in or about the front door of Jack Ryan's, saloon. I don’t remember whether Mr. Renison was there or not. I heard him say something about a pistol. -He asked did I have a gun. I told him I did not. I asked him why. He said, “ I only wanted to know if you had one.” Said he wanted to stick it up a man’s arse and twist the sight off.
    
      John Thorn, witness for the State, after being duly sworn, testified: I was in the back room during the time of the difficulty between Mr. Henseley and Mr. Seela. I know nothing of the difficulty,- saw nothing of it until after it was over.
    Albert Hervey, witness for the State, after being duly sworn, testified: On the night of June 9, the night of the difficulty, I was in Jack Byan’s saloon and saw part of the difficulty. I was standing talking to John Seela, and Mr. Henseley came up to Seela and said, “Have you got a gun?” John Seela turned around and said, “Ho. Why? Do you want one?” Henseley said, “Ho, I wanted to know if you had yours.” • John said, “Ho, I have not got one.” Mr. Henseley stepped back and said, “You are a fine son of a bitch, ain’t you?” and then Henseley pulled a pistol. Henseley then ran toward the bar. In the meanwhile John Seela had ran behind the bar. I saw Henseley fire the first shot. Then I ran out at the door and met Bed Murphy coming in. That was all I saw. I ran out at the back door when Henseley said “You are a nice son of a bitch.” The relator was backing. When relator asked deceased if he had a gun there was about one foot space between them. The relator had taken one or two steps backward when he remarked, “You are a nice son of a bitch.” Seela said nothing that I heard. I don’t think Seela advanced toward Henseley. Think he only dodged behind me and ran behind the bar. Mr. Henseley had his hands in his coat pocket when he came up. Mr. Henseley had taken six or eight steps backward before he commenced to draw his gun. I did not see John Seela strike at Henseley with a knife. I looked back and saw Bed Murphy carrying him off. I did not know that Mr. Henseley was cut, because I have not examined him. I had no talk with Mr. Seela after he was wounded. I am not sure but think Mr. Henseley drew his pistol from his coat pocket. His hands were in his coat pocket when he came up. Just before Henseley came up Seela was leaning on the bar with his hands locked.
    Trammel Hickman, witness for the State, testified: On the night of the 30th of May last I was in Amarillo. I do not know anything of the difficulty between Mr. Henseley and Mr. Seela on that night. On the 9th of June I was on the sidewalk in front of Jack Byan’s saloon when the difficulty occurred between these two men. Between the 30th of May and the 9th of June I heard Mr. Henseley say that John Seela had mistreated him. He said that he had thrown down on him with a gun. I did not see the difficulty between them on the 9th of June. I know nothing of it only what I have heard. I waited on John Seela during his last sickness.
    Thomas Hogan, witness for the defendant, testified: On the 9th of June, 1891, I was in Amarillo. I was in Jack Byan’s saloon at the time of the difficulty, at the front door, leaning back against the door facing. To the east end of the bar from where I was was about eighteen or twenty feet. I have been acquainted with Mr. Henseley about a year and I have been acquainted with John Seela a little over a year. The first I heard was John Seela say, “G—d damn you.” When I looked around Charley Henseley was backing toward me. John Seela was in front of Henseley and moving toward him. I am living in Amarillo. I was a Banger teamster up till last September. I had been in the bar room door but a short time, may be a minute or more. I came to the front door. I was leaning against the south side of the door facing. When I first walked up to the door I could not say who any of the men were that were in the room. I don’t know1 whether the back door of the saloon was open or closed. I did not notice whether there was any one playing billiards or not. When I turned round I looked in there. There were several people scattering and getting away from the bar. When I looked around Mr. Henseley’s back was almost directly toward me. Henseley backed about half the length of the bar toward me. He was putting his hand in his right coat pocket and drew from there a six-shooter. If either of them said anything after this “G—d damn you” was passed I did not hear it. Before I heard Seela say “G—d damn you,” I neither saw nor heard anything between them. I went back toward the barber shop as soon as I saw Mr. Henseley draw his gun, and did not return until after the shooting was over. I have been friendly with Mr. Henseley during the year of our acquaintance. Between the 30th of May and the 9th of June I have heard him say nothing of a difficulty between him and Seela. I am simply acquainted with Mr. Henseley. I have been with Mr. Seela the most. I went in the saloon and came back out and heard Mr. Henseley say, “Give me a gun. G—d damn a man who will slip up or walk up and stick a knife in me.” I know that the defendant had been here this trip since about noon, because I saw him before.
    Charles Henseley, relator, testified: I went in the saloon. I don’t know whether Mr. Seela was there or not. The first I saw of him he came around me. He and two other gentlemen walked around me up to the bar. I think me and some one else were taking a drink. I walked right close up to Mr. Seela. I said, “John, why is it you drew that pistol on me the other night 1” He said “damn you,” or “G—d damn you,” I don’t know which, and stuck a knife in me while he was making the remark. I backed away from him about two steps. He (Seela) was following me when I started to get my pistol. He then started behind the counter. I pulled my pistol, but it partly hung. I threw down on him and he dodged down behind the bar. I shot over the bar at him. I followed him up as close as I could. I ran around the bar after him. I saw Mr. Seela partly under the bar, about where I thought the guns were, and I fired again. There was so much smoke there that I could not see well. The smoke was still worse. I fired at a white object—I could not tell what it was—about where I thought he was. As he first started behind the bar I saw two guns against the ice chest. He was going in that direction. I was too fast for him, and he could not get them. I very often see the boys come and put their pistols behind that bar. I have seen pistols there often myself. I believe I have stated all that transpired between us two gentlemen at that time. We might have said more, but I do not remember it. I did not slap the jaws of Mr. Seela at all when he stuck a knife in me and started toward me. I partly reached out toward him and may have made some remark—am not certain.
    No brief for appellant.
    
      R. H. Harrison, Assistant Attorney-General, for the State.
   DAVIDSON, Judge.

Applicant Henseley was arrested for the murder of John Seela. He sought to obtain bail under and by virtue of a habeas corpus proceeding. Hpon hearing the evidence and examining into the case the court below refused the applicant bail, hence his appeal to this court. It is asked that the judgment be reversed and bail granted.

As we view the evidence and understand the case as presented to us by the record, we are of opinion that the applicant should be granted bail. Without commenting on the facts, we reverse the judgment and grant the applicant bail in the sum of $6000, upon the giving of which in the manner prescribed by law he will be released from custody.

Ordered accordingly.

Application granted.

Judges all present and concurring.  