The questions' raised by the Attorney General in this case are such as- might have been urged in the district courtr and would there have been fatal to the proceeding, unless the court had seen proper to- derive the authority for entertaining the petition from Article 259-9 Gode of Criminal Procedure (Paschal’s Digest), which reads thus-: WA -judge of the district court who has knowledge that any person is illegally confined or restrained in his liberty within his district may issue the- writ of habeas corpus without any application being made fo-r the same-.-”
The verification to the petition should, cover all the allegations of fact contained therein, and a deputy clerk, who-takes the jurat should sign the name of the clerk acting by deputy, and not his own name actiiig for the clerk.
But we think these objections come too late when made- for the first time in this court. We pass, then, to consider whether or not the district court erred - in refusing to admit the appellant to-bad.
There is so little conflict in the evidence that our labor is confined to determining what is the nature and degree of the crime which it proves in law.
We have no hesitation in saying, that bad the appellant Bean killed either of the Collins .'brothers, by the shots which he aimed at them, -and by one of which the deceased Deutsch .come to his death, he would have been guilty of murder in the first degree; and there is nothing in the evidence of threats previously made by *597the Collinses, which, not being accompanied by the ability and apparent intention of putting them into execution at the time of the hilling, could mitigate or reduce the degree of the crime below murder in the first degree. (See Johnson v. the State, 27 Texas Reports, and Dawson v. the State, decided at the April term of the Tyler court for the year 1870, held at Austin, wherein the case of Pridgen v. the State is overruled. Dawson v. the State, is examined and approved at the same term of the court, in Myers et al v. the State.)
But Bean did not hill -either of the Collins brothers, and did kill Deutsch; and he killed him, not in any attempt at arson, rape, robbing or burglary, nor by poison, starving, or torture, and is therefore not guilty of, murder in the first degree, hut of murder, in the second degree, if the evidence before us he veritable.
“ If one intending to commit a felony, and in the act of preparing for or executing the same, shall, through mistake or accident do another act, which if voluntarily done would be a felony, he shall receive the punishment affixed by law to the offense actually committed.’-’ (Paschal’s Digest, Art. 1651.)
There was no express malice, nor does the evidence bring the case within any of the definitions of murder in the first degree, and all murder not of the first is murder of the second degree, and is therefore,' under our constitution and laws, bailable.
The judgment of the district court is reversed, and the appellant will ho admitted to bail in the sum of three thousand dollars, to the acceptance of the sheriff of Gonzales county.
Reversed and hail allowed.