The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1884-07-03

5 T-s MATTER NOW -HDfD1

,nur Appeal, delivered the following
interesting opinion TODAY iu the rg,r 90.
Gu,, sylhurirrl ~, thp State, FROM liar,
ri,; gul buiurc Hon, ,u,Iayr 'uok
The .tsr was once before considered ly
this rulrg on appeal, amt the iudgmrn,
ui tuUN ivliun Was reversed ana tho cHusr
rCmaniud for a new trial, II was r.
Nrrspl and Fvmuudrd, because In the
opinion of thisCuuTl, The trial nudge erred
M falling L. charge the Jury uu The lass
II manslaughtcr, I'VE gave our views
Of the ease mlly ~ the time, In the upin-
ion uf IN, court delivered then, aud VI
shsl. not rriloralc them here, un This
appeal We ind that the evidence before
us il substantially the same ~ on former
appeal, and the trial Judge again failed
o. charge the law of munSlaughtcr,
although specially requested by IA" de-
fcudan, So Ia do, In refusing the special
charge asked, the Judge states his
reasons for So doing ns tulluMs3 This
charge i refused, II being the opinion ol
the court that the reason given In the
opinion If the Court ut Appeals for It's
reversal, t. based on u statement Of evil
dcnoc which, II believed hy the
jury 10 be- true, entities defendant
Ia an aCquittal, and they We're -
Instructed 10y the court, such u
state at IN" ease i 81 maniicStlv self
defense that cannot believe the Court
NJ Appeals intended Ia say that il would
Justify It NCaiict of munSlnughtcr.
Therefore, with the highest respect Tor
the Court of Appeals under my sense Of
duty, The law aud my conscience, ! re-
fuse To- give this charge. This court was
not, We think, mistaken in the facts of
the ease presented 10 rs In the record.
We have again closely examined those
facts on the appeal, and We still
think that u charge upon man
slaughter i demanded by the
evidence. We have never held,
rs the learned Judge seems to think We
have. that the evidence would
justify verdict for manSlaughtcr.
II was not, and ii Is not, our
province Ia determine that uucS-
ton, considering the law of the ease,
nor Was IL or * it the province ofthc trial
judy Ia determine that question when
instrUcting the jury. That was u qucS-
ton exclusively for the jury To decide.
His idea seems To be that If the evidence
in his opinion would not Justify Il vcr-
diet Of manSlaUghtcr then he ought not
10 charge the law of that oilcnsc. Such
is not the rule of the law. II there i cN-
idcnCc in the ease tending Ia raise the
issue of manSlaughtcr IL S the duty of
the trial Judge To charge the law of that
Oticnsc, regardless of his own opinion as
TO whether or not such evidence would
justify II conviction for said offence. II
is tho business of the Jury and
not the court TO pass upon the Suili-
cheney otthc evidence. Our constitution
and laws guarantee Il citiZon charged
with felony the right of trial by jury,
and Il is made the duty of the Jury, and
not the judge, to pass upon the credit of
the witness and determine the weight |
of the testimony. 1t is made the duty of
the Judge to instruct the Jury in the law !
Of the case correctly and fully rs appli- |
cable to the evidence, and to every phase |
of the case a. presented by the evidence.
When the judge assumes the power of
determining the sutlicicncy of the owl |
dence To support an issue prcsentsAby !
1t, and refuses to charge the law rCNonS |
to that issue, involves the cXcrsaivo
province of the jury and denies to |
the citizen on trial the full BEN
eft of trial by n Jury. and |
thus deprives him of n trial by due
course of the law ofthc land. Our,Views |
of this case having undergone no cAange |
since our former opinion. we must say |
that with the highest respect ter the |
learned trial Judge, under our sense OF |
duty, the law and our oonscienSes, we
refuse to lot this conviction stand and
We reverse the judgment and again re-
mand the case for new trial in accord
ance with what we believe the law of the
case. If this defendant cannot have
trial by due course of the law of the
land, if this constitutional right is with
held from him for an unreasonable
length of time, the remedy by habeas
corpus is within his reach. Opinion by
Willson,j.
SUPREME COURT ORDERS.
The Supreme court affirmed: Tenniosn
ct al. VS.. Tennison ct al, from Dallas;
City of Galveston vs. Posnainsky, from
Galveston.
Reversed and remanded: Moore VS..
Jones, from Falls; McLane VS.. Paschal,
from Bexar; Cole VS.. BANNED, from
Harris.
Rehearings refused Mensing VS..
Axer q Elgelke, from Washington; Aus
tin d Northwestern railway VS.. Mays,
from Williamson; Austin IL Northwest
ern railway VS.. Cornwell, from Travis;
Hanrick vs.. Hanrick ct al, from Falls;
Olive VS.. Gowan, from Navarro; Nix ~
Storey VS.. CardWCll ct al, from Cald-
we'll; Bruder Bros. VS.. Strong, from
Lamar; Spaulding VS.. Little, from Gray
son.
Motions to re-instate refused: Fort
Worth City VS.. Crawford, from Tarrant;
Walker VS.. Stroud, from McLennan.
Rehcaring granted and cause trans
ferred to Galveston branch: Gulf, Colo
raeo IL Santa Fe railway VS.. Styron, from
Johnson.
Motion to dismiss overruled: Callers
4 Henry vs.. James, from Grayson.
The following cases were taken under
and transferred to the Gal
weston branch of this court:
G. L. Pratt VS.. Erastus Jones,
from stoG AJAX Br Gray from M%lnGe
E. B. Harold ct. al. VS.. g. w. Arlington,
from Wheelock; City National bank ct
al. VS.. j. w. Tufts, from Tarrant; VIM.
Davie VS.. J. =. Terrell, from Denton;
John Walker VS.. L. T. Morris, from
Cooke; Texas d Pacific railway COM
pany VS.. John J. Ritsche, from Grayson;
ris, from Tarrant; City National bank
VS.. City Elevator IL Compress company,
from Dallas; Houston d Texas Central
railway company VS.. Barney Devaney,
from Grayson; Cullers d Heny VS.. Lib
bic J. James, from Grayson; Missouri
Pacific railway company VS.. Susan and
y. 4. Scott, from Grayson; r.
net, from Lamar; j. w. Cone VS.. Wright, l
Beverly 81 Co., from Oldham; Edgar
Schram VS.. NJ. +. Gentry, from Comal;
J. p. Hector VS.. Martha Knox, from
BeXar; j. Il. Brown vs.. A. Lucretia
Rentffo, from Travis; c. G.. Jones and
lardt and wife VS.. Edward Stoves, from
3exar; Express Printing company VS..
J. ii. Copeland, from Boxer; L. Routant,
rs. The San Antonio National bank, from
Bexar; A. l.. Hoskins ct al. VS.. Henry n
Valet, from Karnes; International d
Great Northern Railway company VS.. c
7. l.. Phillips, from Bexar; The Texas d 7
Mexican Railway company VS.. William /
locke, ct al, from Bexar;J j. c. Roggan
It al. VS.. J. G. Williams d Co., from San t
saba; Texas d Pacific Railway COM S
,any VS.. b. NJ. Thompson, from Taylor;
William ID. Cleveland, VS.. Ba- a
len, Morris d York, from Comanche; b
r. +. Campbell VS.. w. b. Blanchard, C