Fort Worth weekly gazette. [volume] (Fort Worth, Tex.) 1882-1891, 1890-08-07

! clares thai emo person shall be held to answer
for capital or otherwise infamous crime un-
less on presentment or tndictment OF 4 grand
JURY
That on the tiial OF said cause In said district
court on the 18th day of October. 1889, twelve
me who had heretofore during said trial been
impaneled and sworn as q petit jury by said
state district court to try said cause, returned
AMI filed in said court 4erdict convlcting
first degree and fixing his punishment at death;
upon which verdict Judgment was entered &C.
cordingly by said state district court.
That within the time prescribed oy tne laws OF
the state of Texas your petitioner perfected and
entered his appeal from said judgment to said
court of appeals of the state OF Texas sitting at
the city OF Tyler, and that said appeal was with
in proper time thereafter du.y hled and docketed
together with a complete transcript Of the rec
ord of said cause from said district court IN the
said state court of appeals at Tyler; that there
after at a regular term OF our said
court of appeals at Tyler. towit, on
the 18th day of December, 1883 nPon the
of appeals therein rendered judgment
affirming said indgmen. OF the sad aid
state district court ina. med hS fb
laws of the state of Texas, your petitioner, be-
lieving botn said judgment of said state court
and the proceedings in said court had, Is well
court of appeals, to be erroneous and
void as contrary to the sections of the
designated, filed and had duly. entered and
docketed in said court OF Appeals his motion for
rehearing in said cause, and that upon hearing
of said motion the same was by our court of ap-
peals on the 4th day of une, 1880, overruled, by
which said Judgment was made maj IN SAID
state courts.
Your petitioner further SAYS, that II said judg-
ment is carried into execution your petitioner
will be deprived of his life and suffer death by
being hanged without due process OF law, and in
violation Of section OF the fourteenth amend
ment OF the constitution of the United States.
which provides THAT state shall
deprive any person Of life. liberty or property
ME ~ laFu ha aUE
that articles 6O5 500 and sos OF the penal code of
the state of Texas, defining and prescribing the
punishment for murder, are null and
void and not statutes nor law, because
neither of said articles OF the penal
code have ever been passed or enacted into
law by either house of the legislature of the
state OF Texas nor by the congress of the United
States nor by any other legislative power, and
that conviction Under said void articles is
stitution of the United sta,es which provides:
that the United states shall guarantee to
every state in this union Republican form of
government, - which contemplates the enact
ment OF laws By The people through their
properly constituted legislative bodies and not
the making or PRONUNCIATION OF statute by any
one man without the will or consent of the
people.
Petitioner further states that there is no
other law in force in the state OF Texas author
izing or providing for the trial or punishment of
any person for the ofanse OF murder, and that
sid articles referred 10 are not law but are null
and vcid.
of the penal code of the state of Texas, which is
q valid and suhs!sting law of the said state,
r-adS as follows:
Article 6O7. II the jury shall find any per-
sou guilty OF murder they shall also
lind by their verdict whether it is OF
the first or second degree. and if
any person shall plead guilty to an indictment
for murder jury shall be summoned to find
" hat degree of murder he is guilty" That said
statute was valid law in full force and effect
at the time of the commission OF the homicide
charged in this cause and at the time of the
trial OF said cause in said state district court
and is thu. mandatory in ,,d its require
judge shall pass upon the two degrees of
murder, notwithstanding which said state
in said state district court in effect repealed said
statute. and then and there made in writing and
real in charge to the jury different rule or law
commanding said jury not to allow your petit
find whether your petitioner was guilty OF the
second degree of hurder,. but that said
rs to the first degree and not as to
the scond degree. said judge then and there en-
forcing said rule in writing as new law in said
cause taking the place of said article 607 of the
Penal Code and repealing the same for the pur-
poses of said trial of your petitioner which said
law or, rule so promulgated and enforced
of post facto law. and also
denied to your petitioner the equal protection
of the law set forth in said article 6O of the Penal
Code, said judge being an officer OF the state of
Texas. all Of which unlawful procedure is con-
trary to the last clause OF section Of the four
teenth amendment to the constitution of the
United States, which provides, nor shall any
state deny to any person within its jurisdiction
the equal protection of the laws.
That said PRONUNCIATION or enforcement of said
rule in writing was therein by said judge stated
to be the law, and thereby it repealed and took
The place OF said statute all OF hch is in direct
violation of section l. article OF the constitu-
ton of the United States, which forbids the
making of ex post facto law.
That all of said questions and matters herein
complained OF were involved and drawn in |
question in the trial OF said cause both in the |
and were by each OF said courts decided against |
your petitioner.
Wherefore your petitioner prays that he be |
allowed a writ Of error to the supreme court of |
the United States in said cause, that said mat |
tiers may be reviewed and said error be corrected
by said supreme court. Your petitioner further |
Or asents that since the 6nal afirmance OF the |
judgment in this court the mandate of |
the court of appeals has been sent down |
petitioner will be executed and suffer death |
under said Judgment before tha next term of the |
supreme court OF United States unless said pro- |
ceeding is stayed by supersedeas, the said 1
state court having sentenced said petitioner to |
be hanged on the first day of September. $50, |
while the said supreme court OF the United |
States does not convene. being now in vacation, |
until the second Monday in October, 1880.
Wherefore your petitioner prays your honors |
to allow your petitioner writ OF error directed /
by the clerk of the court OF appeals OF Texas at |
Tyler and a supersedeas to the sheriff of Tarrant
county that petitioner life may be spared until
said cause can be decided by the supreme court |
Of the United States as provided by section I04O
revised statutes United states.
Your petitioner fur. er states that all of said 1
matt Ars and questions are fully shown by the |
record of said cause, which is here submitted
or the inspection of your honor, saiu record
with E. P. Smith, the clerk of the
court of appeals at Tyler, Tex. and that vour
petitioner is now in accordance with the
avs of the state of Texas. confined in the Jail |
IF Tarrsnt county Tex. il the custody of ]. c.
the sheriff of said rarrant county,
o await the final decision of this cause. Re- |
Attorney for Petitioner, J. W. Davis.
Allowed by John P. White, P. j., court of ap-
,eals of Tex $.
July 81, 1896.
Mr.. johnson spoke freely to n re-
porter yesterday about the status of the
'ase. HThe supreme court convsnes on
he second Monday in October,'
le said, "but it ts not at
III probable that the Davis
ase will be taken up before
January or February, at the earliest, as
Irority Is always given on the docket to
ases in which the United States is
arty. which must be disposed of before
ny state case can be taken up.
"The result of the hearing before the
upreme court, have no doubt, will be
adorable 10 my client, though the exact
hape the result will take is Qnes-
ion TO be settled only with the
of the appeal. If the