The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1897-12-23

| the elOrmity OF the crime UaLS =.
! that the penalty of the law seem az
gether insufficient. He concluded
remarks by asking the prisoner II ne n
ANYTHING TO say to show reason VI
| the death sentence should not be pass
upon him and the day Of his execute
| set.
| When this question was asked Ma.
I Walton counsel for the defense. aToa
| and waving Burt 10 his seat. stated thi
while ne did not necessarily hope 20 sig
| the passing Of the sentence, that ullt
! the law ne had the right 10 present soL
| facts in the case for the considerable.
OF the court. and that he would preseh
them in as brief a manner as pOsslDl,
! If the court would grant him that priv
| lege. This was done and the major pro
| ceeded 10 recite the history OF the cas-
| so far as the action Of the court OF crIml
nal appeals was concerned which l.
| known to the readers of The Statesman.
| The major recited that the court OF
criminal appeals had affirmed the Judg-
ment of the lower court. and that the!
! had been appealed to for rehearlng.
He then read the written motions
| at Tyler. bearing on the motion for re-
/ hearing. in the following order:
TO the Court of Criminal Appeals:
Appellant Burt prays the court TO hold
I'D the mandate in his case for the regu-
I lar period of fifteen days, TO the END
that he may file a motion for rehearing
| of the decision handed down on the
ID instant.
This prayer is founded on two main
| facts:
| "First-This is a case of murder in
/ the first degree, and the punishment as
sessed is death. and that in reaching the
, ,a1r y ha TfrH
court has been compelled TO overdue,
modify or materially change at least two
| decisions of this court of long standing.
and which cases were accepted by the
| bar, all inferior courts and the people
as announcing the law of their subject
matter in Texas when appellant was
tried in the district court of Travis eoun-
ty for his life, and on which cases, and
the law as announced in them was i'm
plicitly relied on by him and his case
conducted in view of their utteranceS,
viz: The Webb case, 8 Tex, App. 400,
and the Williams case, 80 :. W. Rep.
/ 6S1. The said decisions being at the
! time of the trial the law of the land, he
was entitled 70 the benefit thereof in the
protection of his life; and to change the
law after his wrongful conviction, said
| decisions being the test of the law. is 10
unlawfully withdraw from him the bene-
III anu pIOtcSlIOn VI tlS III" " lAe lo4u
and TO punish him without due process
Of law Constitution L. s., Art. 3: also
Art. IA, Sec. L.
! The change Of the rule Of law by de-
cisiOn after conviction is in effect TO en-
act an eX post facto law. or a law retro
active in effect. forbidden by the same
constitution. Ibid. Art. l. Sec. 9. Sub. g.
| 1T is also in the nature of impairing
the obligation of contract The deci-
/ sions of the courts of last resort become.
and are. law in all the relations Of life
among the people and in the govern
ment. Id, Art. Il. Sec. /; Art. 10,
/ Sec. H.
Appellant was under the law enti-
/ tied 10 the rules of evidence on his trial
1 as known TO the common law. of which
/ he was deprived by the trial court and
that unjust and unlawful deprivation is
affirmed and approved by the court of
last resort. art. 40. P. C. Of Texas
! The rules of evidence known to the
common law in respect TO the proof Of
insanity, when it is interposed as a de.
Tense mas been declared by the supreme
court of the United States in no uncer-
tain terms, and such decision is binding
L. s. " 10y -''
'SecOnd-In the first decision of this
court 1t failed to pass on quite a num-
! her of questions made on the trial be-
| low. presented in the brief and argued
| orally at the bar of the court. and now,
/ for the first time. the high court rules on
them and hands down an opinion dispos.
ing of said questions.
| Appellant claims that it is his legal
| right 10 be heard in the motion to rehear
these newly decided questions. That
right sounds in reason. justice, the law.
and in the constitutions, state and ma
tional
IF mandate is already issued he Draws
the court to recall it and hear motion
| for rehearing."
TO the Hon. the Court of Criminal An.
| peals:
The appellant rciterating all tho
grounds of his prayer in his application
J to the court 10 withhold mandate affirm
ing his case on appeal for the legal
| period of fifteen days to enable him 10
make proper motion for rehearinc. he
now here, his life being az stake. pro-
tests against the order of the court TO
compel him by limitation to prepare his
motion for rehearing, travel about 800
miles and argue said motion within six
days from the delivery of the opinion
ana decision which cOnsigns him TO an
infamous death. which opinion and de-
clslOn he claims is not the law of his
case and is in violation of the constiru-
ton and laws of the state of Texas and
OF the United States, as pointed out by
him in his prayer 10 withhold mandate
as aforesaid.
He protests now:
"Flrst-That under the laws and con.
stitution of the state of Texas. he has
not had fair and impartial trial. in
the spirit of that instrument in that the
law of the case was not given to the
jury, in that the law of evidence as
known to the common law was disre-
garded and 4 strange rule. unknown to
the statutes of Texas, as well as un-
known to the common law as declared
by the supreme court of the United
States were enforced as against him. in
that the burden of proof was put upon
him when insanity was the issue.
"Second-ln that the court of last re-
sort in this state has affirmed the I'M
just deprivation last aforesaid.
"Third-DecisiOns of this court gem
orally known and relied on as the law
of Texas in the trial of cases involving
life. and in full force at the trial of this
case, We're by the trial court disregard
ed. and this unjust. and as it is claimed.
unlawful disregardment is affirmed BY
this court, Notwithstanding to affirm
the disregardment this court has to
withdraw, override or materially modify
its said own decisions that had long
been promulgated in Texas as the law
of Texas in those respects.