Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-03-20

worked well and have been OF great ser
vice to prosecuting attorneys and have
lessened the labor and expense of the
courts. An Improvement can no doubt be
made on the "Common Sense" forms.
We will now examine the allegations
and statements of Mr.. Houston under
the third count of general incompetency
The first statement is that the Court Of
Appeals affirmeda $4,000 judgment in O
case against the Houston and Texas Cen.
tral Railway Company appealed from the
District court of Limestone coun;y. He
does not give the name of the plaintiff OF
other reference. We have been unable to
find the case. This allegation is certainly
subject to demurrer for uncertainty. We
think it likely that it WAS 8 condemnation
case appealed from the County court. II
so, the Court of Appeals had jurisdiction
under the statute and the constitution.
Rev. Stat. Art. 1909; Con-, Art. 5, Sec. %
In Wilkerson vs.. the Safe r. &C. A. 255
Judge White decides question never be-
fore presented as an issue in court OF
last resort in Texas, to-wit: Whether
or not 1t WAS necessary in an Indictment
for murder to Gllege the location of the
wound. 1t is true there had been dicta
in Smith vs.. the State 43 Tex. 643l and
Nelson VS.. the State l G. A. Al hat such
allegation should be made. In Wilker-
sons case the issue was directly pre-
sented and elaborstely argued. The cor
rectness of this decision is not ques-
toned, yet the mere opinion Of the Su-
preme court in Smith vs.. the State,
Judge Roberts, beng Chief Justice, WAS
to the contrary. Judge White, after a
lengthy and thorough discussion Of the
point Ia Wilkerson's case. does ssy "thet
in the light of the authorities adduced,
and under the plain dictates of COM
mon sense" the former opinions to the
contrary will be Ioverruled. Under these
facts Mr.. Houston says: "In the face Of
such admissions vituperation is dis
armed"
The case OF Montgomery r. C. A. SIS |
comedies with Huobsrd's case in same
volume, on the main issue, viz: that theft
from house WAS not then an
ofense, by reason of the
law having been repealed. The court
remanded the case in Hubbard vs.. the
State, because the Indictment was good
for theft. The court dismissed the case
IN Montgomery VS.. the State. Does this
furnish ground for serious criticism or
censure?
The gentleman dwells at length on
Weob's case, 81 C. A. SO, and says:
'Judge White could no longer 3esist the
to override q trio of great
jurists," referring to Judges Hempaill,
Wheeler and Lipscomb. The court In
Webb's case was in accord with and fols
lowed Thomas Cease, 40 Tex, 60,
Holcombe's case, Al Tex 1875, and Nc
CrAckey's case, I 5, G. A., 500
The Gherke case, 10 T. SOS, may not
have been IN conflict with the above cases.
1t was undoubtedly so regarded by many
Of the profession and SO put down by
Judge Clark, who says in his Grim
Laws Tex. p. Is, N. TO- "opinions of
witnesses were formerly
held inadmissible," citing the Gehrke
harm for Judge White authoritatively and
definitely to quiet and settle the
point by declaring the Gehrke
,ase overruled and the opinion of
professional witnesses competent
N the Harris case &C. A, 1l7l the
court held tnat reading the statute oefln-
ng misdemesnor to the Jury was not q
7erbal charge Of the court Judge Rob
.rts in Carr VS.. the State al T. held
hat In his opinion such was verbal
;harge. This seems to US difference OF
'ome practicsl Importance urder the
statute. Mr. Houston says there was no |
conflict, and takes occasion to rise to
he following oriental flight: "No con-
rsst more mourDful is seen along the
Vile, where the jacksl snsrls, sole lord of
he desolsted temples and deserted
palaces of imperial Sesostris."
The next case in which Judge White is
Irraigned is the case of Flynn ct al. rs
}. A, 1881, in which Judge White is
;harged with deciding it as ne did in Or
Ter to yindicate his record as an attorney
before Judge Irelsud, District Judge.
Judge White is also charged with citing
n favor of his decision ALIENS case 81
T., 2S01 Is semi.colou case), which case
8 said to approve the Bennett & Harris
case, the latter case holding an opin-
on adverse to that Of Judge White.
The facts, on inspection, ere these:
IN so t, supra the court decided
hat Joint verdict for fine supported
several Judgment, affirming the view of
Tucge Ireland, who tried the case belC ".
Now, 81 Texas (supra) decided just the
opposite. Both 80 Texas and 81 Texas
we're decisions of the semi-colon court,
act not noticed, or, at le6st, not men
Toned by Mr.. Houston. The court in 81
Texas enormously refers to 80 Texas
Judge White properly referred to 81 Texas.
Evidently there is no error here by Judge
White, either in law or in reference.
The next case taken up by Mr.. Houston
Ior anlmsdversion is Harris case 10 G.
A., 202, which brings up the "sow and
pig case" Judge White is here charged
with "sneeringly" abiding to Judge Rob
ert's opinion in Smiths case ~ Texas,
IA, as "certain dicta;" and "with vir-
.ualIy assuming that SOW and pigs could
become part of the record for the Su-
Dreme court" The facts are as follows:
In Smiths case Judge White was the
trial District Judge. he allowed the
Jury, by consent OF the defendant, at the
Of the state, to leave the court
room and go out and view the ears of q
SOW, there being an issue as to the change
Of marks. Judge Roberts, on appeal, de-
cided, and no doubt CORE city, that 1t was
improper for the Jury to get testimony
In this way, and amongst several other
reasons, he mentioned this one, that "the
SOW could not be sent up with the trans
cript of the record" There were
several other good and sufficient reasons
given to show the illegality Of the pro-
cedufe. Therefore, the fsct that the