The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-06-28
CLASIlNG COURTS.
Judge Cook and the Court Of
Appeals.
is THE MATTER NOW ENDED
The Case of Rutherford W.. the stat. l.
the Apple OF Discord - \ Heavy
Days work Accomplished by
the supreme Court.

AUSTIN, June ~. - Special. -- The
Cour, of Appeals delivered the following
interesting opinion to-day In the ease of
Gus. Rutherford w. the State, from lIar-
rs; tried before Hon. Gustavc Cook.
The case was once before considered by
this court on appeal, and the Judgment
of conviction was reversed and the cause
rcmandcd for new trial. IL was re-
vcrscd and rcmanded, because In the
opinion of this court the trial Judge erred
in failing TO charge the jury on the law
of nanslaughter. "Wc gave our views
of the case fully ut the time, In the opin-
ion of the court delivered then, and we
shall not reitcratc them here. ON this
appeal we find that the evidence before
us is substantially the same as on former
appeal, and the trial Judge again failed
Ia charge the law of manslaughtcr,
although specially requested by the de:
fcndant so to do. In refusing the special
charge asked, the Judge states his
reasons for So doing as follows. This
charge Is refused, II being the opinion OF
the court that the reason given In the
opinion of the Court of Appeals for its
reversal, is based on Il statement of evil
dencc which, If believed by the
jury to he true, entities defendant
To an acquittal, and they were SO
instructed by the court. Such II
state of the case is so manifcstly self
defense that cannot believe the Court
of Appeals intended to say that IL would
Justify. veslict of manslaughter
Therefore, with the highest respect for
the Court of Appeals under my sense of
duty, the law and my conscience, | re-
fuse to give this charge. This court was
not, we think, mistaken In the facts of
the case presented to us In the record.
We have again closely examined those
facts ON the appeal, and we still
think that charge upon man
slaughter Is. demanded by the
Us the learned Judge seems Ia think we
have, that the evidence would
justify verdict for manslaughtcr.
1t was not, and IL is not, our
province TO determine that ques-
tion, considering the law of the case,
nor was IL or is IL the province of the trial
Judge to determine that question when
instructing the jury. That was "A ques-
ton exclusively for the jury to decide.
His idea seems to he that If the evidence
in his opinion would not Justify Il vcr-
diet of manslaughtcr then he ought not
to charge the law of that oiiensc. Such
is not the rule of the law. If there is cv-
idcncc in the ease tending to raise the
issue of manslaughter ii is the duty of
the trial Judge 10 charge the law of that
oiiensc, regardless of his own opinion ms
to whether or not such evidence would
Justify Il conviction for said offence. 1t
is the business of the jury and
not the court to pass upon the suili-
cheney of the evidence. Our constitution
and laws guarantee citizen charged
with felony the right of tria, by jury,
and IL is made the duty of the uIN, +, and
not the judge, to pass upon tia u. VI
the witness and determine the weight
of the testimony. II IL made tlc duty of
the judge to instruct the jury1n the lay
of the case correctly and fully as appli-
cable to the evidence, and to every phnse
of the case Ms presented by the evidence.
When the judge assumes the power OF
determining the sufliciency of the evil
dencc to support an issue presented by
IL, and refuses to charge the law relating
to that issue, involves the exclusive
province of tho jury and denies TO
the citizen on trial the full ben
thus deprivcs him of II trial by due
course Of the law fthc land. Our views
of this case having undergone no change
since our former opinion, we must say
that with the highest respect for the
learned trial Judge, under our sense of
duty, the law and our consciences, we
refuse to let this conviction stand and
we reverse the Judgment and again re-
mand the case for new trial in accord
ancc with what we believe the law of the
case. If this defendant cannot have u
trial by due course of the law of the
land, IL this constitutional right is with
held from him for an unreasonable
length of time, the remedy by habcas
corpus Is within his reach. Opinion by
Wilson, ].
SUPREME COURT ORDERS.
The Supreme court affirmed: Tcnnison
ct al. VS.. Tennison .et al, from Dallas;
City of Galveston vs.. pOsnainshy, from
Gavcston.
Reversed and remanded: Moore vs..
Jones, from Falls; McLanc W. Paschal,
from Bcxar; Cole vs.. Bammel, from
Harris.
Rchearings refused: Mensing VS..
Axer a. Elgclke, from Washington; Aus
tin a Northwestern railway VS.. Mays,
from Williamson; Austin ~ Northwest
ern railway VS.. Cornwcll, from Travis;
Hanrick VS.. Hanrick ct al, from Falls;
Olive vs.. Gowar, from Navarro; Nix X
Storey VS.. Cardwen ct al, from Cald-
well; Brudcr Bros. vs.. Strong, from
Lamar; Spaulding vs.. Little, from Gray
son.
Motions to re.instatc refused: Fort
Worth City vs.. Crawford, from Tarrant;
Walker vs.. Stroud, from McLcnnan.
ferred to Galveston branch: Gulf, Colo
raco Il Santa Fe railway vs.. Styron, from
Johnson.
Motion to dismiss overruled: Callers
,S Henry vs.. James, from Grayson.
The following cases were taken under
advisemcnt and transferred to the Gal
weston branch of this court;
c. l.. Pratt VS.. Erastus Jones,
from Clay; Gray Wallace
l.It "a q Dtns
T.. u. Harold ct. al. vs.. q. w. Arlington,
from Wheelock; City National bank ct
al. vs.. j. w. Tufts, from Tarrant; VIM.
Davie VS.. j. l.. Terrell, from Denton;
John Walker vs.. T.. 7. Morris, from
Cooke; Texas a Pacific railway COM
pany VS.. John j. Ritsche, from Grayson;
a. Pickering VS.. Loving, Garncs Il lIar-
ris, from Tarrant; City National bank
vs.. City Elevator a Compress company,
from Dallas; Houston a Texas Central
railway company vs.. Barney Devaney,
from Grayson; Cullers a. Heny vs.. Lib
bic j. James, from Grayson; Missouri
Pacific railway company VS.. Susan and
y. A. Scott, from Grayson; X.
r. Williams ct al. VS.. u. &. Con-
net, from Lamar; J. w. Cone W.. Wright,
Beverly Il Co., from Oldham; Edgar
J. +. Hector vs.. Martha Knox, from
Bexar; J. 4. Brown VS.. A. Lucretia
Rentfro, from Travis; c. q. Jones and
wife vs.. J. B. Goff, from Travis; Ear
hardt and wife vs.. Edward Steves, from
Bexar; Express Printing company vs..
J. II. Copeland, from BeNer; l.. Routant,
vs.. The San Antonio National bank, from
Bexar; 4. l.. Hoskins ct al. vs.. Henry
Wallet, from Karnes; International X
Great Northern Railway company vs..
]. l.. Phillips, from Bexar; The Texas n
Mexican Railway company vs.. William
Locke, ct al, from Bcxar; j. e. Roggan
ct al. vs.. J. &. Williams Il Co, from san
Saba; Texas 4 Pacific Railway com
pany W. u. NJ. Thompson, from Taylor;
William u. Cleveland, ". Ba-
den. Morris a York, from Comanche
X. y. Campbell vs.. w. u. blanchard,
In...... Ann.n.. a....... I.....r rnln.. A Ill