Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-08-03

1
| cordingly by said state district court.
That within the time prescribed by the 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 pro per time thereafter duly hled and docketed
ord of said cause from said district court in the
said state court Of appeals at Tyler that there
e e6sT a Of appeals ssEHas at Tyler to% a
| the 18th day OF December, 1859, npon the
hearing Of said appeal our said court
affirming said Judgment, of the said
| state district court; that Immediately
thereafter and within the time prescribed by the
| lieving both said judgment of said state court
| and the proceedings in said court had, as well
as said Judgment of afirmsnce by the
| court of appeals, to be erroneous and
| void as contrary to the sections of the
] constitution of the United States hereinafter
/ designated, fled 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 18th day OF une, 1880, overruled, by
| which said Judgment was made final IN SAID
! state courts.
petitioner further says, that if 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
which provides that no state shall
| deprive any person Of life, liberty property
| without due process OF law" because he says
that articles 6O5 Cos and COS OF the penal code OF
the state of Texas, defining and prescribing the
| punishment for murder, null and
| void and are not statutes nor law, because
neither of said articles OF tho 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
contrary to section of Article OF the con =
stitution Of the United States which provides:
hal tha Init
every state in this union Republican form of
government" which contemplates the enact
properly constituted legislative bodies and not
the making PRONUNCIATION of statute by any
one man without the viii 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 ottense OF murder, and that
said articles referred to are not law but are null
Your petitioner further says that article 6l7
of the penal code OF the state of Texas, which is
valid and subsisting law of the said state,
reads as follows:
ARTICLE 607 II the Jury shall find any per-
find BY their verdict whether it is OF
the first or second degree, and II
for murder a jury shall be summoned to find
y. hat degree of murder he is guilty. That said
statute 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 mandatory IN its require
Judge shall pass upon the two degrees of
murder, Notwithstanding which said state
district judge on the trial of your petitioner
in said state district court in effect repealed said
statute. and then and there made in writing and
rial in charge to the jury different rule or law
commanding said jury not to allow your petit
toner the protection of said statute and not to
find whether your petitioner was guilty of the
second decree of murder. but that said
jury should only consider and find
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 COZ of the
Penal Code and repeating the same for the pur-
pos of said trial of your petitioner which said
law or rule so promulgated and enforced
OF an ex post facto law, and also
denied to your petit toner the equal protection
of the aw set forth in said article Sol 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 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 J. 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
o
question in the trial of said cause both in the
state district court and in the court OF appeals,
and were by each OF said courts decided against
your petitioner.
Wherefore your petitioner prays that he be
allowed writ of error to the supreme court of
the United States in said cause, that said mat
by said supreme court. Your petitioner further
presents that since the final afifmance OF the
Judgment in this court the mandate OF
the court of appeals has been sent down
to said state district court, and that your
petitioner will be executed and suffer death
under said Judgment before the next term of the
supreme court OF United States unless said pro-
cceding is stayed by supersedeas. the said
state court having sentenced said petitioner to
be hanged on the first day of September. $50
while the said supreme cCu-t 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 4 supersedeas to the sheriff of Tarrant
county that petitioner s life may be spared until
said cause can be decided by The supreme court
of the United States provided by section 1910
revised statutes United States.
Your petitioner further states that all OF said
matters and questions are fully shown by the
record OF said cause which is here submitted
for the inspection Of your honor, saiH record
remaining with E. p. Smith, the clerk OF the
court of appeals at Tyler. Tex. and that your
petitioner is now in accordance with the
of Tarrant county. Tex, in the custody OF ]. G.
Richardson, the sheriff of said Tarrant county,
to await the final decision of this cause. Re-
specially submitted, BYRON G.. JOHNSON,
Attorney for Petitioner, j. W. Davis.
Allowed by John P. White, P. j., court of ap-
peals OF Tex S.
July 81, 1880.
Mr.. johnson spoke freely to re-
porter yesterday about the status of the
case. ''The supreme court couvsnes on
the second Monday in October, -
he said, "but it is not at
oil probable that the Davis
case will be taken up before
January or February, at the earliest, as
priority is always given on the docket to
cases in which the United States is
party. which must be disposed of before
any state case can be taken up.
1.-THE result of the hearing before the
supreme court, have no doubt, will be
favorable 10 my client, though the exact
shape the result will take is a ques-
ton to be settled only with the
eventustion of the appeal. II the
objection to the legal validity of
the penal code of the state is sustained
the prisoner will come off scott free, but
if only such errors as occurred in the
trial are sustained then new trialgwill
be ordered. The validity of the
penal code Is a mooted legal
question never yet passed upon by the
supreme court, though there are now
pending before that tribunal four