The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1899-12-17
because il is consistent With both u. Law

and. the facts sah.. al lSa;YRgs
Neal Us. DeiawsfS. fhst negroes are ara ~ I.
cluded from the juries In this State, but
1t is denied that such is the case. and
the presumption Is that they vote and
proven when 1t Is so alleged. In the case
above cited. the accused made motion,
to have subpocnas issued for the COM
| missioners of the levy codrt. which court
makes the annual selection OF grand and
petit Jurors, also for the clerk and baiifff
OF said levy court. This was objected TO
| by the attorney general of the State OF
| Delaware, the motion to quash the in
| dictment and panel OF petit jurors having
already been passed upon. The motion
| for suopoenas was denied by the court on
the ground that II was without precedent
] and was not according TO the practice OF
the court OF oyer and tcrminer
| In this case the supreme court says:
| But passing b. this ruling of the court
below as insufficient in itself to authorize
a reversal Of the judgment, We are of the
| opinion that the motions to quash, sus-
tanned by the affidavit of the accused,
which appears to have been filed in sup
| port Of the motions without objection to
| its competency as evidence, and was I'M
| contradicted by counter affdavits. or even
by a formal denial OF the grounds as
| signed-shoud have been sustained. II,
under the practice which obtains in the
| courts of the State, the affidavit OF the
prisoner could not II objected to. be used
| as evidence In support OF motion 10
quash, the State could waive that objec-
| ton. either expressly or by not making
II at the proper time. No such objection
appears to have been made by its attor-
| ney general On the contrary, the agrees
ment that the prisoners verihed petition
should be treated as an affidavit III
the consideration and decision of the mo-
TONS" implied, as we think, that tne
! State was willing to risk their determine
| ton upon the case as made by the am
| dayit in connection oil course, with any
| facts of which the court might take judi
cial notice"
The supreme court Of the United States
| following the above language, says tnat
the showing as made by the afiidaVit' TO-
I gether with the fact that no colored ciu-
/ zen had ever been summoned as a juror
! in the State, which fact was so generally
! known that the court felt bound 10 take
| judicial knowledge OF it, made out prima
| facie case against the State. through her
! subordinate officers, of discrimination
against the accused, hence denial to nm
OF his rights as a citizen under the Fed
eral constitution and laws.
The case at bar, however is not such
case as the one above considered. There
| was no petition for removal of the cause
! into the circuit court of the United states
| verified by the accused. no agreement on
| the part of counsel for the accused and
/ the prosecuting attorney that the afhdaVlt
of plaintiff in error could be used as PROOF
I of the allegations contained in his motions
to ouash the panel of grand Jurors and the
panel of petit jurors no fact OF Which
the district Judge could take judicial cog
| niZance, such as that no negro had ever
sat on the jury in the courts of the state
| of Texas. All these things, the necessary
| and material elements in the denials oil MS
I civil rights to the accused in he case OF
Neal vs. Delaware, are wanting in the
case at bar Here We have a record show
ing that the motion to quash the indlct
ment was sworn 10 on the 18th day OF
January, 1898, and came up for hearing
on the trial of the cause March II, 1873
more than two months thereafter. Unoer
the practice of the trial courts OF TINS
State. the accused should, before the case
was called for trial have caused to be
issued subpoenas for the witness by whom
he expected to prove the allegations in
his motion. He should have rendered the
| witness in person and by name TO the
court. and if the court refused 10 hear
testimony then and there, by his attorney.
the accused had thesright to take time 70
prepare his bill Of exceptions and to pu'
therein what he expected to prove by each
witness. Article 724 of the code OF Grim
! inal procedure, revised statutes of Texas,
I 1895. is as follows: "On the trial of any
criminal action the defendant, by himsei'
or counsel may tender his bill OF eXcep-
tions to any decision opinion, order or
/ charge of the court or other proceedings
/ In the case. and the judge shall sign such
/ bill of exceptions, under the rules pre-
scribed in civil suits, In order that such
decision, opinion, order or charge may be
raised upon appeal.
Under the procedure OF the state oil
Texas, il there is direct conflict between
fact as stated in the statement of facts
and as given in a bill of exceptions, the
higher court will look TO the bill of eX-
ceptions as correctly stating the fact,
However. it is not to be understood that
the approval by the trial court Of bill
of exceptions as rendered by the accused
aud an order to file same is an admission
by the court that everything contained
there is true as matter of fact.
In the case of Henry Smith VS.. the State
of Texas, Fourth Texas court of appeals
rep, $780, the defendant was convicted and
made "A motion for a new trial, which was
overruled by the court, and to which ruling
the defendant saved his bill of exceptions
In this bill of exceptions. defendant sets
! out the grounds which we're urged for a
new trial The court allowed the bill OF
exceptions and ordered 1t to be filed. In
the court of criminal appeals, the appel
liant claimed that the hillasof exceptions
showed that actually and in fact there
was no plea entered for defendant The
courts says THE specific fact, and the
only specific fact established, and sought
to be established by the bill was, as W.
apprehend. that the defendants motion
for new trial had been overruled. and
not that the court intended to admit and
certify the fact that the grounds set ou
in the motion were true and we'll taken
No other construction is warranted by the
bill as stated. Else why. If it be held Il
certify the fact that no plea was entered
might II not with the same propriety bi
red that the bill also certifes the two
other grounds of the motion, viz: First,
that the verdict of the jury was contrary
to the law and to the evidence; second
the verdict of the jury was excessive
We can not believe that the court in al
lowing the bill ever intended to admi
as fact that the verdict was contrary
10 the law and the evidence or that II
. was excessive, and yet at the same timt
has placed itself upon REGARD as hayin.
refused him new trial, in the face o.
absurdity; It would De equivalent to
criminal qualification of itself by til
! court
In the case Of Hennessy vs. the state
% Texas CT. OF App. Rep, p. $50, the fol