The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1899-12-17
LII2!l!|.xI!:l5Q;|3


by approving same and ordering II ma3o
part of the record. That part OF the
record in this case which involves the
point being discussed appears as follows
| tTr PIP, and AZ
THE State of Texas VS.. Seth Carter. No.
1i,S76 Indicted for murder.
This day this cause was called, and
the State appeared by her district attor-
ney and the defendant. Seth Carter, APP
pcared in person, his counsel also being
present. and then came on TO be heard tho
defendants motion to d,iash and set aside
the Indictment herein: and the same hav-
ing been heard by the court, 1t is consld-
cred. ordered and adiudged by the said
court that the said motion be, and the
same is. in all things oyerruled, to which
| ruling OF the court the defenant, Seth
Carter in open court excepted
1t is to be presumed that the honorable
judge OF the trial court did his duty in
giving hearing to the motion of the ac-
cused, and ii Is not left to presumption
merely to vindicate him in this respect, If
he needed any vndication. but the record
itself speaks out in the language above
quoted, The same having been heard in
court" and elucidates this part Of the dis
cussion, 1t is an elementary principle of
the law, that in our dual system of gov
eminent the State and Federal govern
ments are supreme in their respective Jul
risdictons but that in case of a conflict
the Federal constitution and laws of con.
gress are the supreme law of the land in
the sphere of delegated powers The
courts of Texas know this. The motion to
quash the Indictment raises a question
foreign to the record so, far as the trial
court is concerned, and requires cXtraneous
proof TO substantate the averment, 1t Is
a matter of which the court could not take
! judicial knowledge, either to say that the
averment was true or untrue. 1t required
positive proof that the accused was dis
eliminated against on account Of his race
and color in this particular case at bar
regardless of what had been done by liry
commissioners previously thereto, A uni
| form course OF action in this respect might
| have great weight in determining the
question OF Discrimination in the p1rticu-
lar case. To conclude that the court In
: tended. by merely approving the bills OF
exception and ordering the same Med. TO
say thereby that the grounds urged in the
motions to quash which were included in
said bills We're true. and that the Jury
commissioners had Disseminated against
the accused on account of his race and
color, or that the averment of counsel for
plaintiff in error 10 the effect that the conrt
refused to hear any testimony whatever
/ upon the issue raised. which issue il
proved true. was a violation of the spirit
and letter of the constitution and laws Of
! the United States, wouldSbe a qualification
of himself and which under the clearly ex-
4 pressed Views of this court meant a re-
versal.
/ 1t is to be presumed that the trial court
| did his duty in the premises. II is to be
presumed that, at the time he passed upon
| the motion TO quash the Indictment, he
/ knew the law OF the United States as eX-
pressed in the solemn declarations of the
highest and most honorable judicial trib-
unal of this Republic AT the time he
approved the bills of exceptions and or
dered the same filed, he is presumed to
have done SO in view of the procedure
and practice of the courts OF Texas. as
/ expressed by her highest court in criminal
matters, viz: The court of criminal APP
peals. 1t may be argued that the trial
court should have obviated all difficulty
in this matter by having limited or quail
! flied anything contained in the bill of eX-
/ ceptions before having approved same.
But in the administration of the crimi-
nal laws of this State and in View of
| the great amount of work incumbent upon
our trial judges and their arduous duties
| of properly passing upon The admissibility
1 of testimony and properly preparing and
! giving in charge TO the Juries me law
applicable to the case; and further, IN
| this case In view OF the fact lhat all
! these bills of exception were presenter
for approval some two weeks after the
4 trial of the cause. and just on the day
before adjournment of the court, II is not
to be supposed that the court would take
into consideration every possible view
which might arise afterwards upon more
mature consideration II is evident that
the court of criminal appeals OF 1eXas
did not conclude that the rlai court py
his approval of the bills OF exceptions.
intended to assert as true the slale-
ments therein contained. The court uses
the following language in their opinion on
the motion for rehearing in TINS case
Ctr. D. 44): But 1t is SAID that mere aP.
pellant offered to prove the allegations OF
his motion and the court refused 70 PEI
nit him. The languarge USED IN tne
Smith case, supra in the motion, also con
ktains a proffer to prove the ailesatlons
of the motion by the officers selecting tne
iury. and prayed for subpoenas Tor saiu
officers But this court, in decinlhg lhe
question, ignored this offer, presumably On
the ground of its iusufiiclency' as nei.ie
too vague and. in fact. because the test
mony of no witness was oneren ~ ''
port of the motion. a.,
The proposition contained in the fnoli'n
here is still more vague ana BeHet"i,
names no witness or person oS nho'
was proposed TO prove the aiteh"iIon9 w.
the motion. Under the pfactice IA oas
courts. and We believe under the praetloc
Of all courts, bare proposition 20 Plose
certain facts without rendering the WV
, ness or witnesses. or stating ~ Mholh u
was proposed to prove them, woulH not DC
suificienl 10 invoke the action o. tne
court. And the bare recitation that tne
court refused to hear evidence in support
OF said motion is without meanins De,
cause in fact no testimony was iehuelsu
by appellant . AT any rate, lns
! bill of exceptions on this subject shonla
be so framed as TO INCLUDE All hiat .,,
I sufficient to overcome the presuilp.ion
OF the correctness of the rniins com
planned Of" 80
i In the case OF Bush vs.. Kentucky, re-
ported In the 1O7 U. s. Reports, PIP Nv
: 1913, the same question Is Involved AZ ~
, the case at bar The statutes ana aee i
sions of Kentucky are reviewed by TINS
court After the adoption OF tne TOUT
teenth amendment to the Federal constr
tuition. the legislature of Kentucky Twice
passed statutes prohibiting persons Of Inc
African race from serving as grand OF
petit Jurors. This remained the statutory
: law OF Kentucky till January 20, lsss
! However. the court OF appeals OF Ken Ken
a lucky delivered an opinion June ~, lsov
Q in the case OF Commonwealth vs. Jonn
y son. in which they declare that the statute
4 law of Kentucky is unconstitutional IN %
3 far as 1t IL In conflict with the expressed
views Of the supreme court OF the uniles