Evening journal., 1896-03-18


who opposed your motion, were not only
satiehed that NAPLES was not shown TO
be incompetent to testify; but we're also
convinced that, under the precedents and
settled practice In this aud other court
OF this state, he was legally admitted bs
the division of the court as TO his admis
sibility This principle was established
Ia this very court In the case
Of State VS.. Brown, Houston
Criminal Cases. 545, by CHIEF Justice
Comeeys and Judges Woottea, Houston
and Wales, sitting In that case, as neces
sary to the progress Of 4 trial under our
Judicial system. That their decision is
binding upon US as precedent and
course Of practice applicable to this case
until reversed, at least, by majority OF
this court-whlch has not yet been done
is firmly believed by our side Of this
court, consisting OF Judge Marvil and
myself
"Your application for a new trial
having failed, tbereupon your oousel
moved in arrest Of Judgment. After
argument and mature consideration that
motion failed 70 secure the support Of the
requisite moi lrlty OF this court-and the
motion, owing again to a divided court,
has been overruled; and Judgment not
being arrested, sentence, as a matter OF
course must now be passed upon you.
THAT a divided court should produce
this result Is not new or surprising In
this state or elsewhere Very recently
the Supreme Court OF the United States.
the highest judicial tribunal IN the land.
WAS equally divided on the question Of
the constitutionality Of the United States
Income Tax Statute The result was
that the statute stood until subsequently
a majority was obtained TO secure it's
total annulment.
Again, In 19l9 in this state In the
case Of Clark VS.. KeRn | Del. Chancery,
ia. the high Court OF Errors and Ap.
peals by an equally divided court affirmed
q decree Of the chancellor before II on
appeal; aud thereupon all the judges
unanimously conourred In framing and
rendering the required form Of judgment
OF sfirmance They did this as Hbso
lutely necessary under our ju-
dlclal system to prevent a deadlock
and consequent miscarriage Of justice In
any case before the court During the
three quarters Of = century which have
since elapsed, this rule has continued to
be uuiformly observed in this state by
our Court Of Errors and Appesls. as well
as Ia this Conrt Of Oyer and Terminer as
shown by State vs. Brown which l have
Just cited.
las late as 1888 II was expressly con.
sldered and unanimously recog1izsd In
the Court Of Errors and Appeals. In the
case Of Walker vs.. Farmers Bank, 3
Houston, 258, IN which l myself sat
with Chief Justice Comegys and Judges
Houston and Paynter So that it ID
impossible now to question It's justice,
OF disregard it's binding authority In this
instances without utterly repudiatinR
the wise and necessary doctrine OF
sdherlng TO the presidents established
by our highest aud most authoritative
/ judicial tribunal
1.-THE verdict Of the jury In this csse
Ike the decree Of the chancellor In The
cases I have Just mentioned Is presumed
to be valid and legal in ell respects unit
the contrary is fonnd by a majority oil
the court 10 which it Is called in question
Before verdict. the sccu ied person Il
presumed to be innocent until the Jury L
satishsd beyond o reasonable doubt o. his
guilt After verdict, be Is presumed Z,
be guilty until the legal validity OF the
verdict is impeached 10 the satisfaction OF
O majority OF the court In one Of the
modes allowed and recognized by the Law.
Here there are but two modes allow
able for this purpose. namely, the re
epective motions for a new trial aud In
arrest OF Judgment. These having been
tried by you In vain. aud your right to
move 70 challenge the grand or petit
Jury panels. TO- quasb the indictment,
and to plead IN aoatement before YER
dict, not having been exercised, you have
either exhausted or waived the liberal
provisions reasonably allowed by law for
the protection of the accused. As ths
public have rights as well as the &C
cused, the Law can justly accord nc
further delays consistently with the pub
lie interest and welfare.
Nothing further can now be urged
against the legal validity OF the proceed
ings relating to your trial, or Of ths
verdict against you. You are therefore
IN loyal contemplation, concluslvelS
presumed to be guilty Of manslaughter
and the law will not permit the contrary
to be shown. This being so, 1t is th'
imperative mandate of the law and the
absolute duty Of the court to pronounos
| the sentence OF the law for the punish
ment OF the offense found by the verdict
| IL Is not the sentence of the court but OF
1 the Law, for the court Is bnt the
appointed agent Of the Law to execute It's
mandate.
nOur statute declares that every per-
son who shall commit the crime OF man
slaughter shall be- deemed guilty OF
felony and shall he fined not less thsu
| $4O0 nor more than 81 600. aud shall ba
| imprisoned for a term Of not less than
one nor more than fve years. Hence il
peremptorily forbids the court K
Impose upon the person lawfully
convicted Of msnslaughter, less thar
q $4O0 fine and one years imprisonment
or more than a 81 900 fine aud Eve years
imprisonment. Between this prescribed
minimum and maximum the court ID
allowed a discretion. But as TO whether
or not 1t will impose this minimum, Il
has no discretion This much must b'
Imposed whether the court, as a whole ol
a divided bench, approve OF II or rot
Italex scriptalest. An unanimous-mucl
less a divided-court Is powerless Il
repeal statute; nor eau It lawfully
evRde It's mandate. To attempt thi
would be to violate the law which thu
court was created to enfOrcs, aud Il
disregard the duty which It has selemnly
I