The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-09-26
JUDGE HURTS OPINION,
THE FULL TEXT OF HIS DECI-
SION IN THE HABEAS COR
PUS TRIAL
IN THE PRIZE FIGHT TEST CASE
AT DALLAS.
A Lengthy Review of the Arguments in
the Case and Long List of Author
tiles Cited in the Premises.

The following is the full text of Judge
Hurts opinion in the celebrated prize
fight test case at Dallas. The opinion
was delivered Saturday and reached us
too late for publication in yesterdays
issue.
Dallas, Sept. 21.-Judge Hurt handed
down his opinion today in the prize fight
case as follows:
Elk parte Jesse Clark, on habeas cor
pus. On September 3, 1895, the county
attorney of Dallas county filed an in
formation against Tom Cavanaugh and
Jesse Clark, charging them with having
unlawfully and voluntarily engaged in
a pugilistic encounter between them
selves for money, and upon the result of
which money was bet and wagered, and
to see which an admission fee was
charged. Upon the filing of the infor-
nation q capias was issued and Cava-
naugh and Clark were by the sheriff
of Dallas county arrested and confined
in the county Jail.
On September 6, 1895, Jesse Clark pre-
scented to me his petition for writ OF
habeas corpus, alleging that he was lille
gally restrained of his liberty in the
county Jail of Dallas county, and at
tached to his petition a copy of the war
rant by virtue of which he was arrested
and detained. The writ was granted
and made returnable before me at Dial
las on the 18th day of September. 1898.
At my special request the attorney
general was present at the hearing OF
the cause and represented the State.
The information was based upon article
1905 of the Penal Code as adopted by
the last legislature. The fyst section OF
this act provides that ANY person. VINO
shall voluntarily engage in pugillstlc
encounter between man and man
for money or other thing of value, or
upon the result of which any money
or other thing of value is bet or wagered
or to see which an admission fee is
charged, either directly or indirectly,
shall be deemed guilty of felony and
upon conviction shall be punished by
fine of not less than $500 nor more than
$1,000 and by Imprisonment in the coun-
ty Jail not less than 90 days nor more
than one year"
Sec. 2. BY pugilistic encounter as
used in this law, is meant any voluntary
fight or personal encounter by blows by
means of the fists, with or without
gloves, between two or more men, fer
money or prize of any character, or
* other thing of value, or upon the result
of which any money or other thlng Oh
value is bet or wagered."
IN Upon the hearing it was conceded by
4 counsel that the only question to be ar
"A gued or considered was whether or not
article 1905 was now operative as a law
in force; if article 1905 is not now IN
force the relator should be discharged,
but if said article is in full force and val
h id. the prisoner should be remanded to
the custody of the sheriff.
In order that the contention, OF the
parties may be more readily understood
| will state the history OF the leSlslalioh
upon the subject.
In 1889 the legislature passed an act
imposing an occupation tax upon every
fight between man and man OF SoOO 1or
each performance. In 1891 an act was
passed prohibiting and Furnishing prize
fights. This last act repeats all laws IN
conflict with its provisions. In 1871 an
act was passed authorizing the governor
to appoint three commissioners learned
in the law to revise and digest the laws,
civil and criminal, and to embody tne
result of their labors in two bills, one
containing the entire body of the civil
statutes and the other the entire body
of statutes relating to criminal laws,
both to be properly indeXed, when pllls
the commissioners were TO report W
the governor on or before the meetlns
of the Twenty-third legislature. III was
made the duty of the governor upon the
roceint of such bills and report to cause
ZOO copies to be printed for the use OF
tbe members of the Twenty-third legis-
lature. The commissioners reported "
the governor as required by the act anu
tIe hills were presented, but no actl0n
was taken upon the subject by tne
Twenty-third legislature. The twenty
fourth legislature took up the suoJe ~
The two bills which had been py .ne
commissioners reported TO the governor
1,are referred to a Joint committee, who,
after making a great many amendments
alterations and additions, made their re
mort and recommended that the pllls pass
With fine committee amendments. AS
omanded the Penal Code passed the
house on April Is and the senate on
Anril "a. and was sent to the go'eIr:iG C;i
on April 25, 1895. The REVISED Si1 70
Statutes passed the house on Apln l 10
and fine senate on April Is ana We're sen ~
t any tb une governor on April 90, 1895. Both
Hills became laws without the govern.
or,s annroyal. The Penal Code, Went
into effect on August 2, 1899. Inc NJ
r;sod Statutes by their terms wen, 6 ldleo
offoct at noon on September l, io2o.
The act of 1889 making prize .nsn.s
a licensed occupation IS mcluueSu e. ~ 4,,+ns
ticle 5O49 of the Revised Civil statues
which went into effect on Sepiemhiptea and Il
1Se5. The act of 1891, to prohlplt anu
nunish prize fights is re-enacted as ant
Hole 1905 of the Penal Code, Which went
into effect on August 2, $3.50. =, ho
The relator insists that he snSul9 o Nc
d;scharged-first, because SO mucn oL a.
ticle 5O49 of the Revised Civil etaIuoes
as makes prize fights licenseedd - oceu pa
f;on is repugnant to article l0Oo OF Tue
PenaI Code and being the. last act upon
tbe subject, it repeals article lOOoi sec
o nG # This be not so, then there being
ON fhn statute books a penal law punish punish
inq I nrize fights and civil statute making ihe
sncb - fights a licensed occupation, tne
nenal law is of such doubtful co on rue
tion that it is imperative under ne ned pro
Visions of article 6 of the Penal Coae;
Upon the part of the State II was III
sisted: ..oos ho;no incorno-
rated into the Revised Civil statues 500 as
mart of article 5049 and the act OF 1 GSda
being included in the Revised Penai OU Unt
as article 1905, are to be construeu; ms nOs
as new enactments, but as contilua'ion'
of the original law. -. odon+-
p. That in point of fact the act au t,iro
- l. o.oI tho LEGISLATURE