<p>Habeas Corpus on appeal from the Criminal District Court of Mams, Tried beloxv before the Hon. Gustave Cook.</p> <p>The applicant was held under an indictment which charged him xvith the murder of Henry Williams, in Harris county, Texas, on the 8th day of February, 1886. He was axvarded a writ of habeas corpus, upon the hearing of xvhich on the 17th day of February, 1886, he was refused the privilege of bail, and remanded to the custody of the sheriff of Harris county.</p> <p>The first witness introduced by the applicant xvas Spencer Hutch-ins. The xvitness testified that about twenty minutes before 1 o’clock, on Sunday, the day before the killing, the deceased passed him at the Capital Hotel, and went into the bar-room. Deceased remained in the bar-room but few minutes, and then went doxvn Main street. Witness and his brother Arthur walked off together in the direction taken by the deceased. The deceased then had on a felt hat, and carried both hands in his pockets. Witness and his brother Arthur crossed the street to Heyer & Sehuchard’s drug store, where they joined William Perry. They then looked towards the deceased, who was then just opposite Usener’s saloon. Deceased still had his hands in his pockets, one of his hands resting on his pistol. He, deceased, stopped in front of Thavanat’s saloon, looked through the screen, and, apparently satisfying himself that no one was in the saloon, passed on down Main street, his hand still on his six-shooter. The witness observed his actions particularly because he had heard the reports current about á difficulty which occurred between the deceased and Kyle Terry on the evening before.</p> <p>Cross-examined, the witness stated that the deceased wore no police insignia on the Sunday referred to. Witness did not know whether or not the deceased, who was a policeman, was on duty on that Sunday, at the time he saw him as described. Witness could not say that the deceased was looking for anyone when he passed the Capitol. There was nothing particular about his general appearance to attract attention. The deceased, after going down Main street, turned into Preston street, and went towards Market street. lie went down the street on the side on which Conklin’s drug store is situated. The witness most positively saw a pistol on deceased’s person while he was standing in front of Usener’s saloon. His brother, Arthur Hutchins, and William Perry also saw the pistol. Ilis conduct excited no comment other than a conjecture as to why he looked into Thavanat’s saloon. But for the difficulty of Saturday night, and the fact that he kept his hand on his pistol, the actions of the deceased would not have been observed by witness.</p> <p>Tom Williams was the next witness for the applicant. He testified that he met the applicant in Jones’s saloon, on Preston street, in the city of Houston, on Sunday, February 7, 1886, between 12 and 1 o’clock. Witness heard the applicant say that the deceased was waiting with a shot-gun to kill him. Witness then walked over to the restaurant next to Gehring’s place to get dinner, and, seeing deceased, whom he knew, across the street near the Drummer’s Saloon, he crossed over to him, as he thought it his duty, and told him what applicant had said. In the course of the general talk which ensued, deceased said: “I feel bad. I have neither eaten nor slept. I am worried, and have come here for a purpose, and I am going to stay here until I execute it.” Witness replied to him: “You had better go home and go to bed.” In reply the deceased said: “ Your advice is good, but I took something off of Terry that I could not have taken had I been fixed. I would have killed him last night if I could. I will not take what he gave me, but I will kill him when I get a chance.” Witness invited deceased to take a drink, and the two walked into the bar-room, and introduced deceased to Fred Decker. Decker smiled and replied: “ We are acquainted already; see what he has left here,” pointing to a shotgun. After witness, deceased and Decker swallowed their drinks, witness remarked to the deceased that he had better go home. He replied: “ I believe I will go out of this, but I am going to do what I told you.” Deceased then started home, and witness went to Jones’s saloon, where he had seen the applicant. He went there to keep the applicant from going out on the street. As he passed into the saloon lie looked back and saw the deceased in the position he first saw him. Passing into the saloon, he told applicant that he wanted to see him. Witness and applicant then left Jones’s saloon and walked up Preston street. Witness said to the applicant: “Kyle, I want you to promise me one thing.” Applicant replied: “I do not care to promise anything until I know what it is. Henry Williams, the son-of-a-b—h, is waiting to kill me, and, if I leave, people will say that I am a coward.” Witness then said: “ Kyle, I will tell you the truth. Williams says that he will kill you.” Applicant then went back to the bar-room, and witness saw no more of him on that day.</p> <p>On the following morning, Monday, the witness, on his way to Gehring’s corner, saw applicant and Constable Perkins coming up Preston street towards Market street. Judge Cox, William Kegans, Henry Thompson, C. C. Gehring and witness were then together. Witness, knowing of the trouble between applicant and deceased, wondered at the time if applicant had been placed under arrest. When applicant and Perkins reached a point near the corner of the market, some one remarked: “ There is Terry.” The remark seemed to attract everyone’s attention, and everybody looked towards Terry and Perkins. When Terry reached a point within about eight feet of the crowd, the witness for the first time saw the deceased. He was standing behind a man, leaning over, and apparently was endeavoring to draw his pistol. The applicant called out: “Holdup!” and drew his pistol. Perkins grappled with the applicant and the crowd scattered. The man behind whom deceased was screening: himself dodged and escaped. The deceased then backed, in an effort to pull his pistol, stumbled, and was in a stooping posture when applicant fired. Perkins tried to keep Terry from shooting. Terry did not “ pull down” on deceased at once, but flourished his pistol when he got it out, and fired upon the deceased as soon as deceased got clear of the crowd. Deceased tried to draw his pistol, stumbled and fell, and, as he was falling, Terry fired. Terry then walked up and fired three more shots. Witness told Terry what the deceased said about him, before the killing.</p> <p>Gross-examined, the witness stated that he was with Terry on Saturday night, but not when deceased tried to arrest him, Terry. Just a few seconds before the first shot was fired, witness heard Terry call: “Holdup!” He heard nothing else said. Williams did not draw his pistol, nor did he put his hands on Terry. Terry was some time drawing his pistol. After he got it out he whirled it around to elude Perkins, who was trying to get it. Witness was not near enough to the parties to hear anything said except the words “Holdup!” Terry had previously told witness that if Williams came on to him and tried to kill him, he, Terry, would kill Williams if he could. Witness did not then know whether or not Terry was armed. He saw no shot-gun. He did not know that Terry did or did not borrow a pistol on Saturday night. Otis Fenn, Barney and others were in Jones’s saloon with Terry. Fenn was present when Terry said that Williams was trying to kill him. The witness had not seen Williams’s shot-gun since he saw it at the bar-room on Sunday, as stated. Williams was then standing in the doorway which led to the up-stairs of the Drummer’s Saloon, within eight feet of the shot-gun, which stood behind the bar and easily accessible.</p> <p>Ed. Dupree testified, for the applicant, that he saw the deceased while he, witness, was at dinner at the Bon Ton Bestaurant on Sunday, the day before the killing. Deceased’s trouble with Terry was the subject discussed at dinner. Deceased was standing at the Drummer’s Exchange Saloon, leaning against a fruit stand. Witness spoke to him as he passed, saying: “ How do you do, Henry?” and went on. Shortly afterwards Terry and Fenn came to the door of Jones’s saloon, on the opposite side of the street, and immediately turned and went back into the saloon. Witness did not know whether or not Terry then saw Williams. Witness did not see Terry go up the street, and, if he did go up the street, he must have been more on Preston than on Travis street. Terry’s hands were in his pockets when witness saw him come to the door of Jones’s saloon. Mr. Horn was talking to Williams when witness passed up the street. Terry, going out of Jones’s saloon, could have seen Williams. Witness did not observe that Williams was armed or unarmed. Witness did not know Williams’s hours of police duty, but had not seen him on day duty for some time.</p> <p>Otis Fenn testified, for the applicant, that, between 10 and 11 o’clock on Saturday night, he met Mr. Grayson on the street, and was told by him that the applicant was then in the calaboose. Witness asked him if applicant was drunk. Grayson said that he was drinking, but was not drunk. Witness then said: “If Kyle Terry is not drunk, I will take him out of the calaboose.” Witness went down to the calaboose, and found that Judge Cox and Albert Eriehson had signed Terry’s bond. Jack White asked for Terry’s six-shooter, and Terry surrendered it. Witness did not see Williams until they got to the Capital Hotel, when he saw him about a half block from the hotel. Witness saw no more of Terry that night. Between 10 and 11 o’clock on Sunday morning, Tom Williams and witness went to Jones’s saloon, sat down, and talked for about an hour. Terry was then in the saloon, resting his head on a table. In a short time Terry and witness started out of the saloon, but witness, seeing deceased on the opposite of the street, prevailed upon Terry to go back into Jones’s saloon. Tom Williams then went" across the street to see deceased. The witness then found Mr. Bill Glass and requested him to táke deceased off of that beat, remarking that, if deceased stayed there, either he or Terry would be killed. As he went back to Jones’s saloon, witness saw Terry and Tom Williams. He passed them and looked back, when some one remarked that Terry had gone home in a carriage. At about 11 o’clock on Sunday night, the witness, then on his way home, met the deceased near Thavanat’s saloon. They two went together into the saloon. Witness took a drink of malt, and deceased a drink of whisky. From Thavanat’s saloon the witness and deceased walked together to Hsener’s saloon. On the way, deceased said: “Where is Kyle Terry? He is a son-of-a-b—h! He made me eat dirt, and my friends have thrown it up to me.” After a short interval deceased said: “ I am as well fixed as Terry now. I will kill Terry; — the son-of-a-b—h!” Witness replied: “You had better not fool with Kyle Terry; and, if you do, you want no hitch in your gun. Don’t shoot him in the back. I don’t care which of you get killed, so you stand up and fight like men, but it is not my funeral.”</p> <p>: Cross-examined, the witness stated that when he and Terry came ¡to the door of Jones’s saloon on Sunday evening, Terry saw Williams, but upon witness’s request went back into the saloon. Witness did not know whether or not deceased was standing at the corner of the Drummer’s Saloon when Terry went home on that Sunday evening. Witness told Glass that if he did not remove deceased from that beat, either the deceased or Terry would be killed. Witness told deceased in the conversation referred to that he was running against a bad family when he ran against Kyle Terry; that Terry came from fighting stock, and would fight if necessary, and that the deceased had need to be careful when Terry “went for” his pistol. He did not mean to tell deceased that Kyle Terry was a bad man himself, but that he came from a fighting family, and would fight.</p> <p>Constable Sam Perkins testified, for the applicant, that he was present and witnessed the encounter which resulted in the death of Henry Williams. Just before it occurred the witness was at the station-house. A carriage drove up and Terry and some other gentlemen got out. Witness, who had heard of Terry’s difficulty with deceased on the previous Saturday night, and knowing why he had come to court, called Terry to him and said: “You had better let me make an affidavit against you for displaying a pistol, and plead guilty.” Terry replied: “Ho, I will be tried before the mayor, and beat the case. Let’s go up and take a drink.” Witness and Terry then started to Gehring’s, and, when near the market, Terry remarked : “ There is a d—d son-of-a-b—h, laying for me.” Witness paid no attention to the remark. When the two reached a point near the awning, two or three negroes called to witness, and witness turned to look back. Just then Terry exclaimed: “You d—d son-of-a-b—h, you are going to kill me. D—n you, give me an equal break.” The crowd scattered and witness saw Williams throw his hands back and stoop. Witness grabbed Terry; Williams jumped behind a negro; Terry fired, and Williams fell.</p> <p>Cross-examined, the witness stated that he did not see Williams walking across the street at the time of the meeting. lie.first saw Williams just before the shooting, when Terry said: “You d—d son-of-a-b—h, you are going to kill me.” Witness saw Williams make one and only one effort to draw a pistol. He was then squatting. Witness would not swear that he saw Williams have a pistol. Witness made several efforts to get Terry’s pistol after the first shot, in order to prevent him from shooting Williams any more. Witness talked a little about the killing before he went before the coroner’s inquest. Witness wanted to tell before the coroner’s jury all that he had testified on this trial, but his statement was cut off by County Attorney Oliver, who said that he wanted to get through with the inquest, and wanted witness to answer questions only. Williams tried to draw bis pistol just as Terry said: “D—n you, you have come to kill me.” Terry then sprang to one side, drew his pistol and said: “Give me a fair shake.” Witness thought Williams would shoot Terry, and was afraid to get between the combatants. Before leaving the station-house, Terry remarked that, as there would be no session, of court on that day, he was going to the country. ■ He then proposed to go to Gehring’s and get a drink. Witness caught Terry in an effort to prevent him from shooting Williams. He was not afraid of Williams shooting after he fell.</p> <p>Matt Williams testified, for the applicant, that he had a breech-loading shot-gun at his saloon on the Saturday night before the killing. Witness’s partner, Brooks, told witness where it was to be found after Saturday. Witness complained at his partner for lending it. Witness got his gun at the Drummer’s Exchange Saloon on the Friday after the killing. The gun was not loaded when witness got it back.</p> <p>J. B. Waites testified, for the applicant, that he saw the applicant at home, in the fifth ward, on Sunday evening at about a quarter pase 6 o’clock. His house was about one and a half blocks from the witness’s place of business. Applicant came to witness’s place of business on Monday morning. He came from his home. He walked into the saloon attached to witness’s hotel,— the Fifth Ward Hotel,— and said-to witness: “Will you take a cigar with me?” Continuing, he said: “I don’t think I have quite enough money to pay my fine.” Witness went to get him the money and applicant said: “You had better hurry up or I will miss that train,” or “I will miss the train to go to the plantation.” Applicant was manager of witness’s business at Areola. It was about half-past 8 when applicant was in the saloon, the clock being fast. According to that clock applicant was behind time.</p> <p>Charles Gehring testified, for the applicant, that on Monday morning a party comprising himself, Judge Cox, Tom Williams, Will Kegans and Henry Thompson were standing at the corner of the witness’s business place, discussing the trouble of Saturday night and the occurrences of Sunday. Witness was looking towards the market, and observed the approach of applicant and Perkins. He remarked: “ There comes Kyle and Perkins. I wonder what they are going to do with him (Terry); I hope they are not going to put him in jail.” Witness then saw the applicant draw and flourish his pistol. He next saw the first and second shots, and then saw some one stumbling and falling. Some one remarked, “ He has killed,” or “is killing Henry Williams.” Witness did not see who was killed.</p> <p>Cross-examined, the witness said that he thought that Perkins had Terry in charge, and that when he caught him, Perkins said: “Don’t! ” Terry then fired and the crowd scattered. Witness did not see the deceased’s pistol.</p> <p>A. Hutchins testified, for the applicant, that, on his way home to dinner on Sunday, the day before the killing,-he saw the deceased look into Thavanat’s saloon, and then pass down the street towards Conklin’s corner, and thence to the Drummer’s Saloon, into which he peered as he did at Thavanat’s. During this time deceased kept his hand on his pistol. Witness asked the question: “What does that mean ? ” Perry replied: “It means that Henry Williams and Kyle Terry had a fuss last night.” Witness plainly saw the pistol with deceased’s hand on it.</p> <p>Jack White testified, for the applicant, that he saw Terry on Saturday night at the corner of Travis and Preston streets, at Jones’s saloon. Witness heard no threats from any one. Terry saluted witness as witness passed, and went with witness thirty or thirty-five feet.</p> <p>Cross-examined, the witness stated that Dooley, Williams and Youngst were with him. Terry said: “ Have you come to arrest me? I don’t want to be arrested by a horse thief, but will go anywhere with that old man.” Witness asked: “Kyle, what is the matter with you ? ” He replied: “ I won’t be arrested by a horse thief.” Witness said: “ Come to the station-house with me,” and he went without resistance.</p> <p>Henry Brock testified, for the applicant, that he was employed at Mat Williams’s lunch stand. The deceased got a gun that was kept there, on the Saturday night before the killing. He asked witness for the gun and for some shells, which the witness gave him. Deceased did not say what he wanted with the gun. The gun was returned five or six days after it was taken away. It was about 1 ■o’clock on Saturday night when deceased got the gun. The gun was a breech-loader and belonged to Mat Williams. The applicant closed.</p> <p>Fritz Saiger was the first witness for the State. He testified that he was on Travis street, in Houston, at the time of the killing. He saw Terry coming up the street and the deceased going down the street. Terry drew his pistol, fired, and deceased fell, and Terry fired three more shots. Witness did not see the deceased draw a weapon. While at the Drummer’s Exchange the witness first saw deceased just before the shooting. Deceased was then walking down Preston street. One could see down Preston street nearly two blocks from the Drummer’s Exchange. Deceased fell before Terry fired. Witness saw the deceased’s hands up. He had nothing in them. Sam Perkins had hold of Terry, trying to keep him from shooting.</p> <p>Charles Thavanat testified, for the State, that on Saturday night he heard that Terry and some others had a difficulty at the corner saloon. They afterwards passed witness’s saloon, and witness remarked : “ Thank God, they have passed.” They returned presently and came into witness’s saloon. Deceased came in presently and asked for Terry’s pistol. Terry stepped back, drew his pistol, cocked it, and said: “Ho son-of-a-b—h can arrest me and put nippers on me.” Deceased said: “ I am unarmed and can do nothing.” Terry called deceased a thieving son-of-a-b—h. Judge Cox, Gus Bonner and Tom Bailey were present.</p> <p>Cross-examined, the witness said that he saw deceased go behind the counter, but did not know what he went for. Terry offered to surrender his pistol to the witness, and to go to jail with witness. Witness did not receive his pistol nor go with him to jail. Witness was not a peace officer.</p> <p>Max Goldsmith testified, for the State, that he went up the street just in the rear of Terry and Perkins, and saw the fatal meeting. Witness called out, “Here comes Henry Williams.” Terry said: “You son-of-a-b—h, you are hunting me to kill me.” Williams threw his right hand to his hip and jumped behind a negro, and Terry began firing. Williams fell. Witness saw his pistol on the ground, but did not see it fall, and could not tell whether it fell from his hand or his pocket. Witness saw the deceased on the previous Saturday night. He told witness that he was hunting Kyle Terry to kill him with a shot-gun, and that it was a good thing Terry did not come down Main street; — “ if he had, he would have been my meat.” Witness saw Terry between 9 and half past 9 o’clock on the next morning, Sunday, and told him what Williams said.</p> <p>Sam Johnson testified, for the state, that he was in the market square when the killing occurred. He saw Terry and Perkins coming from the station-house, and heard Terry say: “ You son-of-ab—h, you are the man who wants to kill me.” He then fired. Some one caught hold of witness, and witness fell and rolled over. Williams was behind witness. Terry walked around witness. Witness did not see Williams until after he was killed. Witness was terribly frightened and ran off.</p> <p>J. Beekway testified, for the State, that he was in Houston on the Saturday night preceding the killing. Late on that night the witness saw Kyle Terry in a saloon on Main street. He was then talking loudly to some other gentlemen. Witness heard Terry say, speaking of a policeman: “I am going to kill the son-of-a-b—h.” The party then went to another saloon on Main street, where Terry drew his pistol and said that he would not be arrested. Terry then went to another saloon — Albrecht’s witness thought — on Preston street, to which he was followed by two policemen, one of whom was named Williams. Williams sat down on a box some fifteen or twenty feet off. Terry came out of the saloon, drew his pistol, and said to Williams: “You son-of-a-b—h and thief, draw your gun.” Witness could not say that Terry presented his pistol at Williams, but he continued to curse and abuse Williams, who sat still and said nothing. Many of the crowd attempted to get Terry’s pistol. Terry backed into the street, still cursing. He said that he would go anywhere with Captain Jack. Witness did not know who Captain Jack wras. When Terry threw his pistol down, the crowd scattered, leaving it an easy matter for Terry to shoot Williams if he had wanted to do so.</p> <p>Fred Decker testified, for the State, that Henry Williams handed him a gun in Sauter’s saloon, about 4 o’clock on Sunday morning. It was not then loaded. Witness sat the gun in the corner behind the counter. Williams went to the police station between 4 and 5 o’clock on that morning. Witness saw him no more until between 1 and 2 o’clock on that day, when he came in with Tom Williams and stayed ten or fifteen minutes. Witness did not hear what passed between deceased and Tom Williams while there in the saloon. When Tom Williams introduced deceased, witness remarked that they were acquainted. Deceased then turned away, and witness said to Tom Williams: “See what he has left,” pointing to the gun. It was not then loaded. Witness told Tom Williams after the killing that he did not allude to the gun at that time. That was not the truth, but witness made that statement to keep out of this case.</p> <p>A. F. Lazier testified, for the State, that, about 9 o’clock on Monday morning, he saw the deceased going towards the station-house, down Preston street. Witness heard some loud talking, saw a crowd scattering, and next heard some one, not the deceased, say: “ I am determined to kill you.” He then saw Terry with a pistol in his hand. Deceased then ran backwards, stumbled and fell, and was shot by Terry as he was falling. Terry then shot three times after the deceased fell. Terry then said: “ I have killed the son-of-a-b—h Í I have killed the son-of-a-b—hi” Deceased had a revolver in his hand after the first shot was fired. Deceased was rising up when witness saw his pistol. It fell from his hand as the second shot struck him. Deceased’s right side was from the witness during the conflict, and witness did not know when he drew his pistol.</p> <p>Mike Floeck testified, for the State, that he was in Thavanat’s saloon on Saturday night when deceased came in and asked Terry for his pistol. Terry sprang-back, drew his pistol, and said: “You can’t get it, you son-of-a-b—h.” Witness saw the deceased after-wards, when deceased said that White would arrest Terry. Witness saw Terry with a shot-gun about 9 o’clock on Sunday morning. Witness asked him what he was doing with the gun, and remarked to him: “You are going down to make a d—d fool or ass of yourself.” The gun" was loaded with buck shot. Terry left it on the rack at witness’s store, and witness saw it there.</p> <p>Ed. Metcalf testified, for the State, that he was with Floeck on the corner of Travis street and Texas avenue on Sunday morning, and saw Terry with a shot-gun. Floeck asked Terry where he was going with the gun, and added: “ You are going down to make a d—d ass of yourself.” Terry said that he was going “ down the street.” Witness saw the deceased about 4 o’clock on that evening. He was standing on the corner of Travis and Preston streets, at Gehring’s saloon, opposite Jones’s saloon.</p> <p>W. W. Glass testified, for the State, that he saw Terry at the station-house on Monday morning, at about 9 o’clock. He got out of a hack at that point with some friends, and took a seat between witness and Mr. 0. Helle (8) He said to witness: “Bill, you had better go away from here. You are a friend of mine and I don’t want to have any trouble with you.” Witness replied: “For God’s sake, don’t have any trouble.” Terry replied, that he was going to get even with Williams, as Williams had threatened his life, and added: “T will get the best of him.” He did not say that he intended to kill the deceased,— only that' he intended to get even with him, which the witness thought was pretty much the same thing. Witness expected the trouble to take place at the courthouse.</p> <p>Cross-examined, the witness stated that he was deputy city marshal of Houston. He saw Fenn on Sunday evening and asked him if there was any way of getting Terry, who was then in Jones’s saloon, home. Fenn said: “You keep an eye open, for when Terry and Williams meet there will be trouble.” Witness thought that the trouble was between Terry and Freeman. Kyle Terry got in a hack and went home on Sunday evening. On Monday morning Kyle Terry said to witness: “I will kill Williams this morning.” Witness had just stated that Terry said only that he would get even with him. Witness now states that he said that he would “kill Williams this (Monday) morning.” Witness now says that Terry did not tell him that Williams had threatened him, pursued him or tried to kill him. The witness’s statement continues as follows : “ He didn’t say who threatened him. He did not tell me that he was going to kill Henry Williams. He never mentioned Williams’s name. Ask Major Spencer (the district attorney) if I said so. I did tell Major Spencer just now that he did not say that he was going to kill him, but only said he was going to get even with him; but if you now ask me the question, and draw me out, I say he did say he intended to kill him, and he did say he had threatened him. I did tell Major Spencer that he did not say he was going to kill anybody, but was going to get even, and that he did not mention Williams’s name; but you have now drawn me out, and I say he said he was going to kill him.”</p> <p>J. R. Waites testified that Terry was his brother-in-law. Terry had no property, and did not own a dollar. He had neither father nor mother. He had no brother in Texas. His sister in Bell county owned only a homestead. His sister in Fort Bend county owned some property, but it was incumbered. Kyle Terry had some friends, but witness did not know whether they could or would bail him. Witness would not know who to ask to sign his bond.</p>
