The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1893-11-09
REHEARING OVERRULED.
IN THE CASE OF ED NICHOLS, WHO IS
UNDER THE DEATH SENTENCE.
The Decision Touches on the Rape Act and
Practically Overrules the Recent Rul-
ing Of Judge Won Rosenberg
on the Sunday Law.

The following synopsis of the
opinion written by Judge Simpkins of
the court of criminal appeals APP
peared in yesterdays issue of the
Galveston News. The decision, as it
bears on the second ground claimed
by appellants counsel, Mr.. George
Calhoun, has peculiar interest to the
attorneys of the Austin bar at this
particular time. The point decided
by Judge Simkins is practically the
same as the one raised by Mr.. George
s. Walton in the Sunday law cases
against N. Nossick and on which our
county Judge, Won Rosenberg, ruled,
the main point of difference being
that the views held by Judge Sim
kins are Numerically opposed to
those entertained by our own judge,
Won Rosenberg. The case was or
iginally tried before District Judge +.
G. Morris and only about 10 days ago
The sentence was affirmed. Following
is the summary of the opinion:
Ed Nichols vs.. The State, from
Travis county. Rape, death penalty.
Motion for rehearing based on TWO
grounds overruled.
First-That the court erred in allow
ing Sheriff White to testify as to con-
fession by the defendant. While 1t is
true, as stated in motion, that appel
liant said that he had told Sheriff
White it was best for him to tell
about the mattor, yet he says he told
Sheriff White he was not guilty, and
made no confession. This statement
was made to the court after the jury
was withdrawn, at which time Sheriff
White denied defendants statement
TO t court, and asserted that the
confession was made freely voluntari-
ly and after being cautioned. When
the Jury were brought back, witness,
White, again repeated the statement,
and detailed the confession before the
Jury. The defendant did not deny or
question this testimony before the
Jury then. Had this been done, the
court should have charged the jury to
disregard the confession if they be.
lieved it was not voluntary, and there
was no error in submitting it to the
jury. .
Second-Appellant insists that the
case shall be reversed because the ii.
tie of the act of April 8, 1891, Is fatally
defective in failing to state the sub
ject Of the act, tovit: Rape; and that
merely stating the article, chapter
and title of the penal code intended
to be amended is not sufhclent under
article 8, section 35 of the constltu-
ton.
Held: II ever there was any force
in the objection as applied to the
criminal codes of Texas, 1t Is now no
longer an open question, Ever since
the enactment OF the penal code and
code of criminal proceedings the leg
islature, with this or similar consti-
before them, has
amended these codes by acts the IT,
ties of which only gave the article,
chapter, title and name of the code
sought to be amended. The penal
code being single act designed to
embrace every offenss against the
laws of Texas complete with
in itself, arranged and CLASH
fed into chapters, titles and arti,
Giles. every Legislature since its adop.
ton has deemed it to be suf1cient
compliance with the constitutional
provieion, to-wit: Sec. 30, Art. .. Ii
the title of the proposed act referred
to the code in the manner above stated
thereby it is sufficiently specified the
subject sought to be amended by the
act. If, therefore, uniform legislative
construction, supported by judicial de.
cisions and recognitions can settle
ANYTHING @ must hold the title OF the
act in question to be sufficient.
The object of the constitution re.
curing that an act should express the
subject in it's title was to prevent
vicious legislation by log-rolliug, and
to put the legislature and public on
notice as to the contents of each bill.
Still the constitution has received a
most liberal construction, and 1t mas
been held that II the title fairly gives
notice and leads to inquiry 1t is sum-
Gent, and the provisions OF statute
are to be sustained as long as they
are of the same nature and come
ieeitimately under the general
subject expressed in the title (many
authorities cited). But these consid.
erations apply almost entirely to CIVIL
matters and have very little applice-
ton to criminal law, which must al
WAYS be general in It's nature, affect
ing oil alike, and cannot oe ex post
facto nor the vehicle ot private inter
est. And while the constitutional
provision controls both civil and crimi-
nal law in the enactment, yet when
the criminal law, codified into q sys'
tenn complete in the law itself, relating
to one subject, there could not reason,
ably be more distinct expression o.
the 81 bject in the title Of the act thar
q statement of the article, chapter and
title and name of the co1e 10 &c
amended. This very suc)ect nas a.
readv been considered and decided In
Hassell Meyers case, In first court OF
appeals, 655, and McCracken's case
AZ Texas, 1856.
Are Your Children Subject 10 Group?