Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-03-18


the far blue Of the remotest regions Of
space, yet it is submitted that
such 8 theory is not consistent with the
principles Of an enlightened iuriepru-
dence, and "comports not With the Gus
toms OF our ancestors"
Il ia charged that these judges have
shown iDcompetency and iuef1ciencY in
frequently everything their own opinions,
Consistency is said to be the virtue OF
fools, and 40 man who refuses to change
and correct his opinion can justly be re-
g4rded as 3 safe ind conscientious ex-
FOUNDER of the law. With the rapid
growth Of Texas in population the num-
Der of criminal cases appealed to the
court Of last resort has very largely H.
creased. The Court of Appeals since its
organization has decided over 5000 cases,
civil and criminal, and al examination OF
the printed reports will doubtless show
that Judge White has rendered more
written opinions in criminal cases than
Judges Hemphill, Wheeler and LipscOmb
all combined,an that his overruled cases
are not in larger proportion than these OF
the three judges mentioned.
Aside from this, however, the cases
cited by Senstor Houston do not sustain
the charge. The apparent force Of his
citations and criticism Is largely due TO
an incorrect use and construction OK the
term "overruled," and in some instances,
to an entire misconception Sf the points
involved in the cases he mentions.
The first instance specified is thst Judge
White in Wilkerson's case, r. Court Of
Appeals reports, p. 255l overrules his
own opinion and repubhshes his own rea
soning in the former case of Nelson VS..
State, l Court OF Appeals, p. IL, holding
an Indictment for murder should state the
locality OF the mortal wound. In the lat
ter case, the sufficiencV Of the Indictment
WAS not before the court for adj Indication;
! the point ia thst case was SO to the sutti-
cheney of the proof, and 10 discussing 1t,
Judge White incidentally remarks thSt
sit has always been held t1sS the indict-
ment must state In what portion Of
the body the Injury WAS iciicted,"
sud in so far ss the Texas
decisions were concerned this statement
was absolutely and entirely true. The
common law had always required this
statement, Dias VS.. State, Black, p. POI
and Texas mad adopted the common law
as TO procedure (which includes the in
dictmept), where not changed by statute
| TCode Grim. Proc. 81 and no Ttxas
court h4d then expressly held thet TIE
statement OF the locality of the wound
could be emitted. But sfterWard, in the
| Wilkerson case, the question Of whether
such statement was absolutely necessary
came directly before the court, and in
view CT the changes wrought by the codes
ard subSeq gu n decisions, it was nightly
| held, and the court was authorized to de-
clare, thst the law would no loFger re-
| uqirs ouch statement. Tits was not CvaT-
ruling the Nelson c1se; 1t Was but 9
proper declaration Of the law On new
question-neW because II had not been
directly presented to or passed upon by a
Texss c9u~t since the ad"ntion ct the
codes had given occasion Tor its pyesenie e
ton. The decision IS sole, thorough and
exhaustive OF the subject; The comm n
law and English cases, the recent de-
cisiops of other states and OF our own
courts, and the provisions Of Cur codes,
sre ell carefully reviewed, and the court
shows en- evident urWilliGgness TO au-
nounce q proposition that could 10 one
| sense be regarded as change in the lay,
| without having given 10 the matter the
fullest consideration. This decision is Of
special interest to every one iLveGt'g ting
the modern development and progress OF
the law. We had received the common
Law not from Sinsi's top, "girt with the
clouds Of awful revsla;inns," but from s
| bSrbsrOus age and people, and gira with
clouds Of absurd technica,ities and useless
Phrases, resulting from IN imperfect con-
caption ct the true spirit Of the law and
its opposite expression. This rubbish bas
been gradual y swept awsY, partly BIZ legis-
lative ensctmsns Snd partly by judiclsl
| ND ul nj
action of these two forces IN attaining
the result, is ore of the most interesting
studies In the science If legsl iurisp u
dence; and this WilkeTson decision
affords good illustration of the matter.
Tle common law required the Indictment
10 state the locsliiy of the wound; the
statute adopted the common law IS 10
| procedure; cn the other hand the stStute
provided, Code Grim. Proc. 42ll ths. 1t
should not be necessary to allege any
thing in the Indictment which iE is not
necessary to prove, and the courts had
already decided that It was tmmsterial
what the proof was az to the rocality Of
the wound; it might be alleged to be on
the left side and proved to be cn the
right. A breach had thus been made in
a mstter that hsd Heretofore hedged in
the efficient operation Of the law, and
Reason now aVailed herself of an oppor-
tunity to enter. Thus by slow degrees
the letters of superstition and ignorance
have been thrown Of, and the Law per-
mitted to rise into the sunlight
Of equity, md to become the perfec-
| ton OF reason end the COLLECTIVE
expression of en- enlightened peoples
sense of right. This decision marks wits
| q logical snd considerste presentation Of
the matter, enc of those many steps in the
advance OF the law; and it will live in the
annals OF legal science long after the py-
rotschnic displays Of Senator Houston
have faded from the memories Snd the