Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-25
DAVIS VS.. STATE.
Motion for Rehearing Argued Before
the Court, of Appeals at Austin.
Hon. George Clark Interested IN Behalf o.
Dayis-After Argument the Case is
submitted on Briefs.
Special to the Gazette.

Special to the Gazette.
AUSTIN, Tex, May 24.-Davis vs.. the State,
murder case from Tarrant county, argued
to-day in the court of appeals on a motion for
rehearing. Hon. George Clark for the motion,
stated that his connection with the case arose
from the sickness of one of the counsel, that he
had no feeling in the case, no personal acquaint-
ance with the parties, and that the
study of the record only had convinced
him that the court had not reached
proper decision, the defendant had not had q
fair trial under law OF the land, and the cause
should be reversed.
The court order called for 100 jurors, the CLERK
drew only niaety-nine;. the clerk ordered the
sheriff to summon sixty men and then named
ninety-nine; the sheriff served forty-thTee
jurors not accounting for twenty eight TO all or
which defendant had objected.
2. The change OF venue asked for on the
grounds of prejudice and combination should
have been granted. The state might by way or
pleading have raised the issue as to credibity and
means OF knowledge of parties making the am
davit in behalf OF defendant; this issue was
then to be tried, but no evidence was produced
TO contradict defendant on the second ground
and the change should have been granted.
There discretion left to the court.
3. The charge of the court was radically de-
fectiVe. Under statute the court can In no
case dispense in a murder case with charge OF
murder in the second degree. 1t will come 10
this but for the present we can stand on the +.
opinions of this court up 10 date. The court
is bound to charge on all the evidence
in the case and on all the legitimate issues
of the case. He cannot ignore any evidence,
be it ever SO polluted on its face. There are TWO
theories in this case-the one Of the state that
defendant with malace aforethought was seek
ing to slsy his victim. The other, or theory OF
the defense, as it appears in the record paseo
upon defendant testimony and that Of othec
persons, is that an alteration oc-
Cured between defendant and de-
deased, the ''lie'' was passed and the damned
lie returned" Deceased made O demonstration
and defendant shot him. This might be SELF
defense manslau ghter or murder in the second
deEree-either theory may have been correct,
but the latter Withdrawn from the jury and
the court leaped from charge OF murder 10 q
self-defense. Lastly the court erred in not ad-
the difficulty with view of killing Evans, this
was either murder in the hrst or second degree
II. NJ. Furrnan, Esq, for the state answered,
to the venire, that it could not be ass2Iled by
unsworn motive and the record showed 100 lur-
ors, but the name Of W. II. Percy occurred
men. All other objections are raised for the
first time in this court regarding the change
OF venue. The action Of the court
was correct, twenty witnesses out
of twenty-four swore they knew Of lno com
bination, and fourteen swore there was no suoh
prejudice as to prevent = fair trial. The defend
ant did not except to the charge Of the court, and
is now precluded from complaining from the fact
there did not even appear the possibility OF
murder in the second degree. Mr.. Furman
viewed the facts and their bearing ve1y mi
nutely,
Mr. CLARK, in reply, stated that he had con-
fined himself to law, eliIni mating facts from con-
sideration, whereas Mr.. Furman had appealed
to the court on the presentation of facts without
discussing the charge,
The then submitted on briefs by Mr..
johnson and Mr.. Furman-