Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-08-04
THE DAVIS CASE.
A Precedent in the Jurisdiction OF
Capital 0ffenses.
Another Texas Case Which Bears Come Sim
liar Features - The Procedure OF
Memphis Lawyer of Great ABILITY.

W. Davis murder case, the innovation OF
legal procedure long established by
which the cause has been carried before
the United States supreme court, thus
delaying the execution of the death war
rant and opening up @ prospect for the
complete escape of the prisoner from all
punishment for the killing of b. Z.
Evans, has created much comment
among the people generally, and espec-
tally among the legal fraternity, who
view the case with much surprise.
Mr.. Henry Furman, one of the attor-
neys for the state on the trial OF the
case spoke of it last evening thus:
81 don't have any idea that the ap-
peal will amount to anything. Davis
will have respite of not more than
ninety days. If the supreme court took
cogniZance of every penal case that
might be taken before it like this one, it
would have no time to take up any other
cases. This is the fifth case Of the
kind taken up from Texas.
1 think the court will sit
down on the first one presented so heav-
lily that all the others will be disposed of
Immediately by force of the precedent.
~ have no apprehension that they
will disturb the Texas Penal Code. The
origin of this alleged illegality AMI uu-
constitutioualIty of the Penal Code was
with San Antonio lawyer named Nc
Mimi, who professed to haYe discovered
that the requirements of the constitu-
ton had never been complied with in
this adoption of the present Revised
Statutes of the stats which
contain the Penal Code, and therefore
all prosecutions that have been con-
Quoted under the present Revised Statutes
are without legal authority, and every
man convicted in Texas courts since 1879
will be turned out of the penitentiary.
McMIun claims that there was some in
formality in the passage OF the statutes
through the legislature. 1t is matter
for the state courts, as 1 contend. The
alleged error in the indictment is also
question for the state courts.
"When the Duncan case came up In
San Antonio, McMinn sued out writ of
habeas corpus before Judge Maxey, the
Federal district judge at San Antonio. A
writ of habeas corpus is a writ of right
under the constitution, and 1t must be
issued when applied for. The matter
came up and was tried, and Judge
Maxey sat down on the whole proceed
ing, whereupon appeal was taken to the
supreme court of the United States.
That stopped proceedings in the state
courts. The matter came before
the supreme court so late in
last June that it was laid
over during the vacation and will come
up during the ensuing term
The following is taken from the Mem
phis Scinetar of August l, and is of in
terest as similar to the Davis case in
some respects.
Gen, G.. P. NJ. Turner returned from Wash
ington this morning, where he went last Non
day to file records of The Leper-Powel murder
case in the United States supreme court.
Ed Powell will be remembered as the young
Memphian who arrested, tried and sem
fenced to be hung, together with James Leper,
for the murder OF one Mathes, a resident Of
Gatesville Tex, last December.
Mathes was found on the Lampasses 70 ad dead
and riddled with bullets. Four years ago he
was one of jury that convicted q man named
Harvey for shooting with intent to kill, and
sentenced him to four years in the penitentiary.
On the day of the murder Harvey met Mathews
within a few miles of the scene of the killing
for the first time after his release from prison.
What followed is not known. but on the day
of the discovery of Mathes' body Harvey
stated that the murdered man, himself, his son,
and man named Bates were riding together
when two horsemen met and held them up at
the point of pistols. The purpose of the men
party, and out of chagrin at securing so
poor a reward for their trouble, Harvey
claimad, they shot him and Mathes, kill
ing the latter. A citizen Of Gatesville, who
heard the statement, said that he had met
Powell and Leper on the road the evening before.
The two men were arrested, and on Harvey s
Identification were sentenced to be hung. An
appeal was taken to the court of appeals in
Texas, and Gen. Turner was secured by Powell s
counsel with Judge Thomas who had
previously argued the case alone. The higher
court affirmed the sentence OF the lower one.
Gen. Turner prayed for rehearing of the case,
which was denied, Judge Hurt, however, rem
dering very strong dissenting opinion and
sustaining the view taken by the defendants
counsel.
In view of the fact that the counsel of Kemm-
Ter, the New York murderer sentenced to be
eectrocuted, had been refused an appeal by the
supreme court OF the United States, what fol-
lowed makes the Leper-Powel case of
paramount interest to the entire bar
| % America. Gen. Turner applied for a
writ OF error, and on its being granted, carried
it to the supreme court and secured an appeal to
| that judicatory. The will be heard during
the October term. and will be test case OF the
| new Federal laws enacted during Cleveland s
| administration.
Whatever action is taken by the supreme
court will establish precedent in it jurisdiction
| of capital offences as well as Of appeals from
| state courts of last resort.
Gen. Turner's success in securing for his
| clients an appeal when such eminent attorneys
| York failed, has attracted considerable atten-
| ton from the Northern press. Hhe New York
| Times, Chicago Herald, Courier-Journal and
other leading papers discussed the case fully
appeal procedure. Had Kemmler's attorneys
| adopted the same course his execution by
| electricity would have at least been postponed
six months longer. Whilo heir error was fatal,
| his clients from de9th, but has some assurance
| of procuring their discharge.