Ex Parte Mosby, 31 Tex. 566

Caldwell, J. —We are of opinion that the judgment of the district court in refusing bail to the applicant ought not to be disturbed. It is in proof that the deceased had abundant cause to believe that the prisoner had dishonored his bed and disgraced his family. It is in proof that the deceased, with a degree of patience and forbearance which challenges credulity, invoked the aid of the Masonic fraternity, of which they were both members, and one of whose most sacred vows the prisoner had violated, to adjust their difficulty.

It is in proof, further, that the deceased uttered no' complaints until his shame became a topic of Common conversation. Frequent notes passed between the defendant and deceased touching the cause of grievance. The dec'eased implored his adversary to insult him no longer with his presence, but to leave the community, or one or the other should die; yet he would take no unfair advantage. Is there nothing due to the frailty of humanity under such a complication of circumstances, so well calculated to arouse the vehement passion of the heart? We think there is.

The law interposes in behalf of a husband thus injured, and tells him, if he yields to his natural impulses upon discovering his irreparable wrong and slays his enemy, the homicide shall be reduced to manslaughter. (Paschal’s Dig., Art., 2254.) Hot so the defendant; with cool and calculating purpose, armed with three pistols and a double-barreled shot-gun illy concealed, he plants himself hard by the path his unsuspected victim usually traveled to his desolate home.

Upon the approach of deceased he is coolly admonished by the defendant, “You have threatened my life — I have got you now,” and fired with the gun then in his hand. The deceased imploringly said “Don’t, don’t, don’t,” as many as three times; but no, his adversary, without remorse, pursued his fleeing victim until he gave him two other shots, of which he instantly died; embittering his last moments with the.consciousness that he died by the hand of his greatest enemy.

It is insisted on in behalf of the prisoner, that the previous threats of the deceased, coupled with the statement of the witness, Bostick, that at the time of the homicide the deceased threw his right hand to his left- side, and that there was found on the" body of the deceased an empty pistol scabbard, and near where he received the second shot a cocked pistol, and that this prisoner had reasonable ground to apprehend that his life was then in danger. It is sufficient to say in reply to this that, upon habeas corpus, the court or judge trying the cause is judge of the law and the facts.

The court or judge must weigh the evidence and judge of its credibility. Having done so, we are compelled to discard the evidence of the witness Bostick as totally unworthy of credit. . The case of Pridgen v. The State, Austin term, 1868, [ante, p. 420] has been invoked as applicable to the case at bar. There is no analogy between them..

In the Pridgen case “ the parties confronted each other, * * * and an angry conversation, growing out of their differences, was going on between them "at the time of the killing; * * that there were simultaneous movements by the parties of such a menacing nature as to induce one of the witnesses to seek safety in avoiding .the repeated shots of both.” • In the case at bar, the conviction forces itself on the mind that the prisoner compassed the death of the deceased by laying in wait, thus bringing the case within the letter of the rule laid down to establish express malice.

In the Pridgen case we said, “The sole object of introducing threats against a prisoner is to ascertain his frame of mind at the timé of the homicide.” Let us test the applicant’s conduct by this rule, and “ascertain his frame of mind.” He had committed an unpardonable offense on the deceased. He knew that it had been discovered, and his conscience told him that he deserved the severest punishment. He must have felt that he was in great danger. Such reflections would crowd themselves upon his mind in spite of him.

With ample time for reflection and to “form a design,” in pursuit of safety, can it be doubted for a moment 'that his “formed design” resulted in the death of him who was the cause of so much disquietude ? ■ We are asked-to pass upon the ruling of the court below, in overruling á motion to quash the capias issued upon the indictment. The defendant had been admitted to bail by a magistrate, sitting as a court of inquiry, before indictment found. Hpon the arrest of the defendant, by virtue of the capias issued on the indictment, the conditions of the bail bo'nd ceased to have any binding force.

The sole object of the bail bond was to secure the attendance of the prisoner to answer the indictment that might be preferred against him for the alleged offense therein mentioned. Having accomplished this object, it follows that the motion to quash the capias was rightly overruled. The judgment of the district court in all things is Aebtrmed.