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

hN "
20 cav that the interests of the law and
humanity would be subserved."
Motion for Rehearing. ri
"And now comes the appellant aHNs-
moves the court for rehearlng in this
50 10 correct the errors fallen into BY
I ~, cuurr III its opinion and decision
''r5nd down on the Ind inst. The said
H;1,ion and decision being an original dis
.n.sinn of issues in the case that We're
- no former time nor i'll any former
nnfriou or decision ruled on, discussed
| or decided by the court; on which said
matters and Oh COgnate matters he nad
| he right to make motion Tor rehearing:
y:thin fifteen days flom the said date
nn Iyhicb the decision was handed down.
| and 10 have the same considered by the
| oarrt lSavles' Civil Statutes, chapter
tx. title 26) L. u...
| "IrirstGThe rule of the common law
az declared by the supreme court OF the
/ United States, purely common law
| court in Davis VS.. the United states,
l. that when insanity is the defense u6O
I. g. in a criminal case the burden of
,,ro6f is on the prosecution to show in
ssanitv In such case the rule in texas
- ~. common law rule of evidence, vide
ponoI Code. article 40a. This common
Low rule of evidence was refused ap-
reliant on his trial by the trial court
Hc brought the question 10 TINS collre IN
due form and prayed review anu cor
| rcction: review was had, Dut correction
! refused. This was error
..Secopd-The law was, as declared by
This court. that hypothetical questions
conId he based only on all the evidence;
| ,,,nb u,oS declared to he the law when
his case was tried. The trial court re-
fused and acted independent of 1t and
enforced a rule in the respect named,
which had been declared by this court
,'ot "a he the law. To this action of the
trial court this appellant objected, and
being oycrruled excepted and brought the
onestion in due form up to this court.
Tbis CONT recedes from its oft repeated
declarations on the subject and conforms
70 the erroneous rule laid down by the
trial court. This was error.
"Tbird-This court has now declared
y trial rule on the law of evidence that
-ovolutionizes the law of evidence and
actohIishes n new rule which IN TO this
dacision was unheard of and unthought
Of nv bar or bench in this state. and =
declaration is made after applicant
convicted. He was tried under one rl7Ss
OF law. as declared by this court, con.
yicted under another rule. strange Hnd
now. and this new and strange rule is
by This court affirmed. and so far as this
tor,t is concerned his life is taken fion
him. This vas error
"Fourth-This court has affirmed Tie
charge Of the trial court. subdivision
No, II on the subject of murder. where
in the latter part of said subdivision
only murder of the second degree is
charged. and yet the court teis the Jury
that they may under it and pursuant 70
II convict of murder in the first degree.
which the Jury did and gave appellant
death as punishment. This court makes
the words so kill run back through and
over a distinctive conjunction and reach.
contrary to all grammatical CONSTRUCTION,
a sedate and deliberate mind. formed de-
sign to kill. This was error:
The court says if error: II is harm
less error. The least reflection will show
that II is error fatal and full of death.
The calmness Of the mind and its Gc'ib-
erateneSs with formed design. constitute
the essentials of murder in the first &c
gree: and vet the charge permits con-
viction of that degree without requiring
the existence OF the essential CohullF'Hs'
This was error.
ut NAV be that a lawyer or a Judge
or n court may see what the trial court
meant to say and intended 70 say nut
did not say. and thus read between the
lines and supply the necessary word eN-
press hut il is not so of the jurors: lAeT
take what the court says. and do not
not say. This was error.
IF 4 mans life haS no better @uaH
AMY and protection than the ah'lit!- =
an ordinary jury to cOpstrue intertwined'
involved phrases in court charge
where essential words are omitted, ne
has no protection Mt all.
"Fifth-the court misinternreted me
record in that the TESTIMONY Of the wit
ness Sparks interming'ed with that Of the
witness Hughes. II decides the evidence
of Sparks admissible on grounds and for
reasons that do not amply to it and have
no relation to it. This was error.
The court will certainly not permit
its language to stand in regard To this
witness because it is not supported by
the record. hut is. in fact. in the face
of and contradictory To the record.
"Sixth-The court affrmS tie admis-
sion of the evidence Of Jack Hughes be-
cause it was on the issue as to whether
accused was Stimulating insanity on his
trial That was an Legitimate issue.
ruinous 10 him, The issues were, in law
only two. viz:
Il. Did accused kill deceased?
80 Was he sane when he did so. if kill
her he did?
The trial court permitted third issue.
viz: Was defendant Stimulating on his
trial: This third Issue found against
him authorized the jury to say. first.
Cured: and second. that being then sane
and Stimulating insanity on the trial,
therefore he did the murder. Illogical.
ruinous and danDing to the one on trial
This was error
THE court says that Mrs. Burt eN-
claimed. I will stand this thing no.
longer There is no such evidence.
There was = voice. unknown and never
identified. Whose voice it was and why
raised was uueStiOn of fact The cOnrt
ignores the Issue and assumes it was
that of deceased
Certainly the court will modify this
language. If not take back and change
the ruling in regard to the evidence of
witness SPARKS. This was error
The court admits that it con not answer
the .:"estions from the TESTIMONY. viz :
WI = voice wos il: 70 who~ directed !:
and -hv vere the words used: to what
did tho an7lv| Thew con rot he am
swered from tho record. The court a6s
mtS that il is left in tho d"rt on the