The Galveston Daily News. (Galveston, Tex.), Vol. 53, No. 125, Ed. 1 Thursday, July 26, 1894 Page: 5 of 10
ten pages : ill. ; page 23 x 18 in. Digitized from 35 mm. microfilm.View a full description of this newspaper.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
THE GALVESTON DAILY NEWS. THURSDAY, JULY 26. 180k
'V
while the former ia a conveyance in trust
for the purpose of securing: debts, subject
to a condition of defeasance. This princi-
ple is well settled and recognized by all
the courts of this country. [Crow vs.
Beardsley, 68 Mo., 435; Fromme vs. Jones,
33 Iowa, 48; Bartlett vs. Teah, 1 McCrary,
376; Variance vs. Ins. Co., 42 Pa. St., 441;
Lawrence vs. Nuflf, 41 Cal., 566; Hank vs.
Chappell, 40 Mich., 417.J
Keeping in view this plain and well-set-
tled distinction and bearing- in mind the
(provision of our statute regulating assign-
ments for the benefit of creditors [1 Sayles'
Civ. Stat., Art. 65], let us briefly examine
some of the adjudications of our higher
courts upon this question. Many cases
have been decided and many are continu-
ally being appealed in which the instru-
ment of conveyance is attacked on the one
hand as an assignment and upheld on the
other as a mortgage; and the oftener the
question comes before the courts the great-
er the apparent lack of uniformity in the
adjudications, i shall not attempt to review
all the decisions but will refer to some of
the leading cases as illustrative of the sub-
ject under discussion.
In LaBelle Wagon Works vs. Tidball,
Van Zand! & Co., 5 Texas, 291, the instru-
ment is not set out, nor does it appear that
an immediate appropriation of the property
or the proceeds to the payment of preferred
debts was provided for. The court simply
held that the assignment law applied only
to assignments, and did not deprive the
debtor of the right to prefer creditors by
any other legal contract or conveyance.
In Stilas vs. Hill, Fontaine & Co., 62
Texas, 425, the conveyance was made to
secure a single creditor, and was made di-
rectly to the creditor without the interven-
tion of a trustee, and was construed as a
mortgage and not within the assignment
law. The equity of redemption was held to
be necessarily implied from the nature of
the transaction.
In Jackson vs. Harby, 65 Texas, 710, the
conveyance was directly to two preferred
creditors for their benefit; in construing
it to be a mortgage the court [Robertson,
J.] remarks: "It is to be observed that the
instrument vested title in the preferred cred-
itors and not in trustees. When this is
done the comveyianoe is held to -be
a mortgage and not an assignment."-^Page
714.
In Waterman vs. Silberberg [57 Tex., 100],
•the conveyance was by a debtor to a par-
ticular creditor to secure him in 'the pay-
ment of his own debt and indemnify him
as surety for a numiber of other debts.
The court lays stress upon the fact that
•the conveyance <w£fs made by the debtor
directly to the creditor, and also holds
■that the debtor may indemnify such 'cred-
itor against liability as surety or indorser
for the other debits, and the instrument
is a mortgage. In the above decisions it
'will be observed that in every instance the
•conveyance was made directly to the cred-
itor, without the inter vent Lon of a trus-
tee, and great stress was laid upon this
{feature; and, though no condition of de-
feasance was expressed, it was 'held »to be
implied.
In Scott vs. 'MdDaniel [67 Tex., 315] for
the first time our supreme court construed
as a mortgage a conveyance made by the
debtor to a third person as a trustee for
the benefit of preferred creditors without
regard to number. In all these cases there
was to be an immediate sale and applica-
tion of the proceeds to the payment of
debts, tout no consideration seems to have
been given to this fact by t.he court, or
discussion of it by the counsel.
It will be observed that, by a regular
process of accretion or gradation, the con-
struction of a mortgage 'has been applied
to conveyances essentially absolute in their
nature in that they convey the property
without condition, provide for Immediate
possession and sale by the grantee, and
'immediate application of the fund so raised
to the payment of particular preferred
debts. First, there is a conveyance 'to a
single creditor; then to two creditors; then
to a creditor to pay his own debt and others
•for which -he is surety. It would scarcely
•be contended t'hat the debtor ever con-
templated the fact that redemption of the
property or the payment of the debts other-
wise than with funds arising from sale of
•the property, the debtor being insolvent;
mor, indeed, does the possibility <of his doing
so appear, as the grantee may at once
wsell the whole property, and no time what-
ever is provided or legitimately implied
within which he might exercise the right
■of redemption. In these cases, however,
the decisions are put upon the ground of a
direct conveyance to the creditor, and not
to a third person in trust, and upon .this
ground only they are justified on principle
and authority. But in the last named case,
&cott vs. McDaniel, the moorings are out
loose, and a plain, absolute conveyance
in trust to -a 'third person of property to
be immediately appropriated to payment
of preferred creditors is upheld as a mort-
gage, and, since this decision, such con-
veyances have been often so construed,
apparently regardless of the insolvency
-of -the debtor, of the preference of credit-
ors and of the manifest intent to make
an assignment in effect—in palpable evasion
of t.he statute. In the 4ate case of [Laird
vs. Weiss [85 Tex., 95J, it is even held sub-
stantially that to label the instrument
"chattel mortgage" is conclusive of its
character, the court ('Co Hard, J..1 saying:
"The expression in the instrument, that
'the purpose of its execution was 'to se-
cure' the payment of debts, and the em-
phatic statement that it was 'intended as
a mortgage to secure debts,' leaves no
room for argument." iHowever, in a re-
cent case [Schneider vs. iBagley, 24 S. W.
Rep., 1116] the court of civil appeals of the
iFifth district takes a different view, and
one more consonant with reason. In that,
•case t.he Instrument states on its face
that "this instrument is not intended to
operate as an assignment, but a chattel
•mortgage."* fftainey, J., holding this ex-
pression to be of no force, justly observed:
'Vailing it a mortgage does not change th.e
-egal effect. If such could control, all a
debtor would 'have to do when he made
an assignment would be to insert a clause
in it that it was intended as a mortgage,
and the law regulating assignments -would
ibe effectually evaded."
Some of the decisions lay stress on the
question whether or not there is a clause
providing for the return of the surplus
to t.he debtor, or whether such
surplus be of the property itself or
or the proceeds of sale thereof. (Johnson
vs. Robinson, 68 Texas, 400.] This is im-
material, because in all trusts, whether
mortgage or assignment, upon complete
jjerformance of the trust any surplus re-
verts to the grantor. [Faint vs. Elsbury,
CS Texas, 1; Hudson vs. Elevator Co., 79
Texas, 401; Padgett vs. Wood, 34 S. W.
Rep., 1112.1 It is also Intimated that it
must be the debtor's purpose ito make n
general {assignment, conveying all of his
property for the benefit of all of his cred-
itors. Yet the statute does not so restrict
its operation; It provides that "Every as-
signment made by an insolvent debtor or
in contemplation of insolvency for the
tjeneflt of his creditors shull provide, except
»ts herein otherwise provided, for a distri-
bution of all his real and personal estate,
other than ithalt which is by law exempt
from execution, among all his creditors in
proportion to their claims, and however
made or expressed, shall have the effect
fiiforesaid and shall be construed to pass
■ill such estate, whether specified therein or
not, and every assignment shall be proven
or acknowledged and certified and recorded
3n the same manner as provided by law
m conveyances of real estate or other prop-
erty.
On the other hand there have been num-
erous decisions of recent date, recognizing
the distinction herein discussed, and hold-
ing conveyances of this character to be as-
signments. [Fant vs. Elsbury, 68 Texas;
.Johnson vs. Robertson, 68 Texas, 309; Hart
vs. Blum, 76 Tex., 113; Foreman vs. Bur-
mett, 83 Tex., 402; Schneider vs. Basley 24
IS W. Rep.. 1116; Padgett vs. Wood, 24 5
W. Rep., 1108.] The tendency of the courts
seems to be to look more closely to the
manifest purpose of the debtor In tnakine
these conveyances and the check the con-
stantly Increasing efforts to evade tha
operation of the assignment law.
r,-ou-lT'ee Uaines in Johnson vs. Robinson
[68 Tex., 400] clearly states the correct
docttrlne as follows; "A mortgage being
merely intended as a security for debt,
gives under our system at least, merely a
lien upon the property, with or without a
power of sale, leaves an equity of redemp-
tion in the mortftngeor. and the surplus if
any, after the payment of the debts, within
the reach of his creditors by due process of
law. An assignment, on the other hand,
conveys to the assignee the entire estate
of the assignor in the property to be dis-
posed of by the itru.stee in such manner
us the assignor may have lawfully direct-
ed. The mortgageor may vacate the mort-
K-age at any time by the payment of the
debt; but by an assignment the property
passes beyond the control of the assignor
1n any event. It. lis true that should a. sur-
gnor
sur-
plus remain after paying the debt, a trust
•would result in favor of the assignor and
the assignee would hold It for his benefit-
but this Is a result not contemplated by
these conveyances." Again in the same
case [p. 4011, commenting on the instrument
tinder consideration, the court says; "ThCn
Is an absolute transfer of the property, to
lie sold and the proceeds applied to the pay-
ment of the debt, and not merely a condi-
tional transfer for the purpose of securing
debts ac.d defeasible upon condition yf the
payment." This Is a leading case and is
discussed, quoted and approved in Hart vs
Blum, 70 Texas. 113; Preston vs. Carter
Bros,, 80 Texas, 1118; Foreman vs. Burnett.
83 Texas, 402, and other cases; in all which
the distinction is clearly drawn and espe-
cially the different effect of a provision for
returning the surplus of the property,
which is characteristic of a mortgage, and
the surplus of the proceeds of Its sale,
which is characteristic of an assignment.
In order to constitute an assignment it is
not necessary that the instrument should
recite the insolvency of the maker, nor the
fact that the property conveyed consti-
tuted all the debtor's property subject to
execution, nor that the debts mentioned
were all he owed. If these facts exist they
may be shown by parol when the convey-
ance Is silent. Neither does the failure of
the trustee to give bond as required by the
statute, to file the schedule of the debts re-
quired, nor even the actual intent of the
debtor that the statute should not apply
affect the character of the instrument, if
■in legal effect it is an assignment. [Fore-
man vs. Burnett, Preston vs. Carter Bros.,
Fant vs. Alsbury, supra.]
tinder the decisions as they now stand
the subject is involved in confusion, the
lines of a decision being at least apparently
in conflict, as in nearly all cases the 'obje.-t
of the conveyance and intent of the debtor
was evidently the same, viz; to make pro-
vOslon for immediate payment of certain
preferred debts by the direct and absolute
appropriation of property to that end.
Every such case is carried to the higher
courts for construction, as t'here is no cer-
tain rules by which parties may definitely
determine to what class the particular con-
veyance belongs. The need of some decisive
test, some well defined criterion of dis-
tinction is felt to enuWe paj'ties to judge
of their legal rights, as well debtors as
creditors.
It is respectfully suggested that a remedy
may be had by the amendment of the as-
signment law so as to distinctly bring
within its purview special or partial as-
signments by insolvents, so far as prefer-
ence of creditors Is concerned; and the en-
actment of a, law clearly defining chattel
mortgages and deeds in trust In the na-
ture of mortgages, providing for a reason-
able time within which the right of redemp-
tion may be exercised, and requiring that
all such conveyances should receive t'he
assent of all the parties thereto cestui que
trust, trustee and all beneficiaries, before
they should become operative for any pur-
pose, either in whole or in part, thus fol-
lowing out the logic of tha late Chief Jus-
tice Stayton in his exhaustive opinion in
the case of Alliance Milling Co. vs. Eaton,
Guinan & Co., (23 S. W. Rep., 614], hcrlding
tthat the "assent of the parries to be bound
by a contract lis essential to its existence."
This would offer a solution of the difficulty
and prevent fraud upon creditors, as well
as protect the honest debtors. It -would be
a "consummation devoutly to be wished"
by all true, right thinking lawyers, though
it might destroy the occupation of the pro-
fessional commercial -wrecker. It would re-
s-tore confidence and enlarge credit abroad,
put a stop to speculative business on the
part of -commercial institutions. at home,
who too ol'ten extend credit to the un-
worthy upon no better security than the as-
surance or expectation that they will be
protected—t'hat is, "preferred," in case of
■failure and the whole loss saddled upon the
distant merchant In other states. The
theory and oft repeated argument of "pro-
'tecting home.creditors" is utterly fallacious
and is demoralizing. It offers a premium
on dishonesty and tends to produce and en-
courage fraudulent failures. The good name
of Texas abroad, the best commercial in-
terests at -home, and, above ail, the im-
mutable -principles of right and justice de-
mand fair dealing for all alike.
Colonel Street: "I was counsel for .t-he
losing side in the case of Scott vs. Mc-
Daniel. Judge Klttrell decided against me.
1 have no word to say in his defense. The
supreme court affirmed the decision of
the court below, but I wish to say to my
brother Todd -that the reporter don't al-
ways put in the full -brief and the court
don t always notice ail the points named.
However, itha-t case was upon an attach-
ment Issued -by the creditors after the in-
strument had been made and after the
trustee -was in possession and -the contest
was made. The property was allowed to
-remain in the hands of the sheriff and
was to be sold in the course of the at-
tachment proceedings and applied to the
satisfaction of the attaching creditors. The
litigation arose upon suit by the trustee
named in the instrument against the
sheriff and the attaching creditors and the
sureties on their -bonds, and my contention
made upon the part of -the attaching cred-
itors defendants in it-he suit that the sheriff
was against the validity of the Instrument
namely, upon the ground of the alleged
excess of assets that had been transferred
as attempting to disclose and attempting to
commit a fraud. I believe it ihas since been
held that where such an instrument is made
■and is treated as for the -security of the
particular debt or debts named in it, It but
becomes effectually to be concluded. A
general -assignment, under our statutes,
with creditors after the time specified by
the statute within which to file their ex-
captions and file their claims, dating from
the qualification of the trustee, In conform-
ity with t-he decision of the court, holding
it to be an assign-ment; -but .both of these
questions were greatly dark at that time
■and it was considered at least -the on'y
effectual way to make a contest in that
ease was straight out as against t-he valid-
ity of that -paper and for any and all pa-
pers, and now, If Judge Klttreii has any-
thing to say In defense of himself or the
supreme court, I would like to hear from
Mm."
Judge Todd here explained his position.
Colonel Street; "I am a little sensitive
on the .subject; It lias -pursued me. 1 had
occasion a short while ago to go to Mis-
souri with reference to enforce some claims
of creditors, and -t-hey have an assignment
■aw very much like ours, and It seems
they found tihe same difficulty with
reference to the construction as we our-
selves -had, and lo -and behold, t.he first
case they cite and the one they rely upon
is Scott vs. -VMDonald!"
JIJDGK KIl'FTRlHblVH PAIPHR.
Judge Norman G. Klttrell of Houston
read a paper on "The Criminal i,aw of
Texas and I-ts Administration," which was
-as -follows;
Mr. President; il toave not chioaem "The
Criminal il^aw of Texas and Its Adminis-
trat.on" as a theme of this paiper .because
of any special experience in or fondness
for that branch of the lew, but because
the previous meetings of this association
have shown that papers here presented
have dealt almost exclusively with ques-
tions pertaining to common and statutory
law, arising in and applicable to civil
cases, hence a paper concerning criminal
law may, if it has no. other merit, pos-
sess and present that of variety.
There unquestionably exists in the pop-
ular mind no small degree of misappre-
hension concerning the principles and pro-
visions of the criminal code and oode of
procedure, as also concerning t-he agencies
employed in their administration and -the
results following thereon.
■Having been compelled by the duties of
official position for nearly seven years to
familiarize myself with the criminal stat-
utes, the observation and experience "n
such position enabled me ,to judge with
more or less accuracy of the -results fol-
lowing from the operation of these agen-
cies by -which the criminal law is admin-
istered, and suggested -certaim desirable
changes and amendments, hence I have
thought I could do t-he profession and my
"state some service" by presentation of
my views in this form.
The desire to logically present these
views suggests:
1. 'Brief reference to -the principles and
■purposes of the criminal code and code of
criminal procedure.
2. The .real and true end sought to be at-
tained by -trial.
3. Reference to the chief agencies * by
which the criminal law is administered
and the chief grounds of complaint as to
such administration.
4. T.he results reached by such adminis-
trations.
0. Suggestions as to amendments.
It is most manifest that the enactment of
a system of criminal laws, that would be
found sufficient at ail times to meet the
needs and exigencies and the rapidly
changing conditions of a great and grow-
ing state, was « difficult task, and to at-
tain perfection at once, If ever, was im-
possible, and that -those who were re-
sponsible for the performance of that task
succeeded so well is as surprising as it is
gratifying.
-While the criminal law code of Texas
may not he as specific in detail and «■
comprehensive as the codes of same of
the oldest and most populous states, where
social and commercial conditions are «o
■widely different -from those existing in
Texas, yet, for all practicable purposes it
is as wise, as efficient, as simple and'as
comprehensive a system of law as was
ever devised by 'the wisdom of man
That it is perfect is not claimed but It
■hears -upon every page -the impress of t'he
genius and wisdom of learned lawyers to
-whom the peopl# of Texas owe a debt of
gratitude, the measure of which, It is to toe
feared, is not fully appreciated.
The same is true of t-he code of proced
ure, which Is a plain and .safe guide to
■those charged with the administration of
the criminal law.
The design of the code 1s clearly set forth
In the first article, viz: "To define In
plain language every offense against ,tihe
laws of this state and affix tu each it.
proper punishment."
The oble-ct of punishment is declared to be
"to suppress crime and reform the offend-
er."
Whether or not an offense has been com-
mitted is not left to be determined by any
system of foreign law. written or unwrit-
ten, but the system of Texas penal law is
complete within itself, it being declared
art' 3 ^.] 'that 110 Person ®h<all be
punished for any act or omission not made
a penal offense with a penalty affixed
thereto by the written law of this state,
and no person shall be punished for an of-
fense which is not made penal by the
p.ain import of the words of a law, an 1
the code is to be construed according to
the plain import of the language in which
it Is written [art. 8, P. C.j. Words, unless
specially defined, are to be construed in
the sense in which they are understood in
common language.
..The purpo.se and object of the code being
thus set forth and made plain, article 4
declares that "Ignorance of no law after
at takes effect shall excuse its violation."
Chapter 2, articles 21 to 81, inclusive,
out of abundance of caution clearly de-
fines the meaning of certain terms and
phrases, the meaning of which nwght other-
wise be distorted so as to defeat the ends
of the law.
The first article of the code of procedure
declares in substance that its ob.iect is to
embrace rules applicable to the prevention
and prosecution of offenses, and to make
such rules intelligible to the officers, who
are to act under them, and to all persons
whose rights are to be affected by them.
The ends sought, as stated therein, are
as follows:
1. To adopt measures preventing the com-*
mission of crime.
2. To exclude the offender from hope of
escape.
3. To insure a trial with as little delay
as shall be consistent with the ends of
justice.
4. To bring to the investigation of each
offense on the trial all the evidence tend-
ing to produce conviction or acquittal.
5. To insure a fair and impartial trial.
6. The certain execution of the sentence
of the law when declared.
There are then set forth for the conven-
ience and information of officers those ma-
terial provisions of the constitution re-
specting the prosecution of offenses, begin-
ning with that most important provision
of the 'bill of rights, that "no citizen shall
be deprived of life, liberty or property,
except by due course of the law of tin1
land," and followed by pther sections or
•that immortal declaration that finds a re-
sponse in the bosom of every man who is
fit to be five.
There is afterward set forth every en-
actment and instruction that is necessary
to guide the officers of the law and counsel
for defendant through the course of the
trial.
In construing the code and code of pro-
cedure the rules and principles of the
common law are the rules of construction,
when not in confiict with the written law
of this state.
It certainly can not be truthfully as-
serted that a. system of laws and the mode
of procedure for their enforcement, so
based and framed, and with such objects
and purposes, cam operate injuriously to
the interest of any citizen, or to the body
of society, save and except in instance's
where error, liability to which is the her-
itage of mortality, may occur in endeavor
to administer them.
But it may be siaid, as is frequently done,
that It tfs inot the law, but the manner of
its enforcement, of which complaint is
made.
Before proceeding to examine whether or
not the premises assumed by those who
thus complain are sound and their con-
clusions correct and supported by the.
facts, it ds proper to inquire what is meant
by "the enforcement of the law," and
what is the real end sought to be at-
tainted toy trial.
The provisions of 'the code and code of
criminal procedure being shown to be
framed in wisdom and to be in harmony
in the main with right and justice, tha
examination may properly be made in the
light thereof.'
The declared object of punishment is to
suppress crime and reform the offender.
Punishiment can only follow, if the law. Is
to be evoked at all after legal triad, where-
by 'oriane is, toy legal methods, fixed upon
the alleged offender.
Leigal trial means "a fair and impartial
trial," and that only can be had when
there 'has been such time allowed in which
to prepare for trial as will assure the bring-
ing to the investigation all the evidence
tending to produce not conviction only,
but acquittal.
The trial thus conducted begins with the
presumption in favor of the alleged crim-
inal that he is innocent until he is proved
guilty beyond, not all possible doubt, but
reasonable douibt by legal evidence.
This iprovisiion of the law, though often
satirized and ridicufled, is founded on wis-
dom and justice, and is sustained by 'the
underlying principle of the philosophy of
human action.
This presumption continues until it is
overthrown by legal evidence and 'he who
is presumed innocent is proved guilty and
thereby adjudicated a criminal.
The object of the law, then, is to sutp-
oress and reform him who, after a trial
on .which there has been used aM available
evidence 'tending to prove guilt or estab-
lish innocence, has been adjudged a crim-
inal.
The result, if reached at all, is arrived
at by .means of the rules of law consti-
tuting the code applied to all the evidence
tending to secure conviction or acquittal.
It <is obvious, then, that the end sought
to Ibe arrived at, and which should be the
sole purpose of the state's counsel, is to
accord every person 'accused a fair trial
upon all legal evidence, whereby tin1 guilty
may 'be punished and the innocent vindi-
cated, justice executed and truth main-
tained.
If these premises be tine, it is evident
that the fraTriers of the law, guided by the
experience of the ages, knew 'that it would
often be the case that parties would be
unjustly accused of crime, hence they were
careful as well to guard the rights 'of the
innocent as 'to Insure punishment for the
guilty, knowing the law has no higher nor
holier mission than to vindicate the in-
nocent accused at the bar of justice.
The enlightened and learned lawyers and
honored citizens of Texas, whose labors
produced our system of criminal law, had
not been favored with that revelation of
superior wisdom that appears to (be the
special possession of latter day reformers,
wherefrom we learn that an indictment is
sufficfient evidence of guilt, that grand
juries, like kings, "-can do no wrong," that
the law is enforced only when a verdict of
guilty is rendered and that the lawyer who
dares to defend a party charged'with a
violation of law is himself an offender
against good morals and a fellow conspira-
tor with his client against the peace and
good order of society.
Perhaps no sentiment so extreme as this
is very (widely disseminated, yet, judging
by what is often heard and read, the idea
does prevail to no inconsiderable extent
that the law tis not enforced in any case
where acquittal follows trial.
To say tthat the law is vindicated iin its
might and its majesty only when pains and
penalties folflow upon trial is a proposition
that is without foundation in justice, rea-
son or truth.
The purpose of the code of procedure is
to enforce the law laid doiwn in the code,
yet if enforcement is only evidenced by
conviction, why provide that all evidence
shall be heard tending to secure acquittal?
This provision, wise, Just and merciful,
of itself and within itself, proves that by
"enforcement of the law" is meant not
alone -that the guilty are convicted, but
that the term alike comprises the vindica-
tion of the innocent or those whose guilt
is not established by legal evidence.
Any other construction would be with-
out sanction in the Raws of (rod, or in
any other system of laws prevailing in
any civilized and Christian land.
Law i* of God. His bosom is her .seat.
He is the God alike of justice and of mer-
cy, of the guilty and the innocent. His law
"scorched on taiblet stone" is the 'busis of
the penal law of every civilized land under
heaven, and his power, majesty and om-
niscience was not more manifest When he
handed down that law from Sinai to his
chosen people than when, for the
violation of the moral law, he provided
pardon through his own son, and that son,
no more sublimely displayed his divine
power and attributes, when he denounced
sin and scourged those who defiled his
father's temple, than .when with divine
compassion and infinite tenderness he
spoke pardon and peace to the malefactor
dying by his side.
The ascertained and declared purpose of
the law being then to secure the punish-
ment of tin- guilty and the acquittal of
the innocent, or those whose guilt is not
established -by legal evidence, and the law
being plain as to what constitutes of-
fenses, and the code of procedure simple
and comprehensive, it is next in order to
treat of the means and agencies for the
enforcement of the law, and some of the
chief com/plaints made of its administra-
tion.
Both the profession and the public are
familiar with the character of and desig-
nation of these agencies, and it is not
necessary to consume time in any detailed
treatment thereof.
Inspection of the statutes will show what
scrupulous precaution has been taken t »
Insure the selection of iboth grand and
petit Juries. Certainly three disinter- t-.i
men, chosen by the presiding Judge from
different portions of the county, not int. t-
•sud in duy on Uie docket, free-
holders, Intelligent and r good moral char-
acter, would not kn '\\ ingly select im-
proper men as either n 1 or petit jurors.
Ii may be safely* s. ;• s that in nine cases
out of ten the jury mm ssioners are men
albove the average of >,vnce in their
respective communit- , i that the jurors
by theim chosen, usu.i > .i.r• > represent the
morals and inteCJ^ th>- county. No
man is more Inter-- -i in proper en-
forcement of the law than the presiding
judge, and duty and :merest alike urge
him to the selection ■: th• • best possible
men as jury comm; •
Grand jurors'must !■ :n-n of sound mind
and good moral chara. r, householders or
freeholders^ qualified ^ and able to
read and write, and mast not have been
convicted of, or foe u ; i r indictment or
accusation of theft or ,v; an,i after be-
ing selected and rep»r | i,v the commis-
sioners, are, before i- uip ineled, tried
and tested by the pn judge, under
oath, as to their poss. - ; >n the statu-
tory qualifications.
Certainly men so sev i, ,-;.izens inter-
ested in the peace and ■ i- •• .r the com-
munity, may be trusted • ■ , diligently in-
quire into And true pn mrm nf make of
all offenses," and h.-wi^r «i. tlcient they
may sometimes prow . 0th r qualities,
no complaint can justly .< miade of their
zeal or of their failure > on-sent, for the
value of the system is impaired by too
great a tendency to pi >nt indictments
on insufficient evidence ■■cautions to pre-
vent which result 1 shall endeavor to sug-
gest hereinafter.
The arrest of person presented is a
duty devolving on the . nit-, an office
of whom it is frequentiv ii,j that he has
it in his power to coin. Ur acquit any
defendant, and it has 1 , charged that
they often avail thenis^ ,,| suei, innu_
ence. That sheriffs ma> lS, t'heir inllu-
ence and position for th public good, or
abuse iboth to the pu'biic a jury. doubt-
less true, and that such duen. ■ has been
used in the past, and iy i,. USevl bv
sheriffs in the future, in roperiv, is alto-
gether probable.
Observation from a pos : on ♦■nalvilng me
to speak advisedly sat;.- •me, howewr,
that such instances are e. '.>\iinglv rare.
Sheriffs, as a rule, prese \e an attitude of
rigid impartiality and w: -re they depart
thierefrom, the tendency is toward the
state's side. I -have seen ihein tried under
circumstances which test. • t their courage,
manhood and self respec and the eases-
are very few indeed where hey tail to come
up to the full measure of ndr duty.
Power must necessarih tie vested in
some official and if all i, ,■ it as wisely,
upon the whole, in?behalf law and ord-'Y,
as the sheriffs of the stat- there would be
small ground for complaint.
Their duties are often , -rformed under
circumstances in which i y are exposed
to hardship and danger, v-n to loss of
life, and their fortitude .aid courage has
been so often displayed as to have become
proverbial.
The most important ag ncy in 'the ad-
ministration of the law, I.cause the one
whose action, when ad vers to the state, is
final, and that is free to do what unto it
seemeth lit without danger of being called
to account, save at the bar of public opin-
ion, is the Jury.
Pet-it jurors are selected by the same com-
missioners who select the Maud jurors and
the qualifications of all jurors ac substan-
tially .the same.
Transient and migratory individuals,
having no fixed habitation either as free-
holders or , as household . . and const-
quently not identified in in: i. t with the
community, are not eligible .-is jurors.
Men who are usually he,. N of families,
property holders, either as wtiers or ten-
ants, most especially in the country as
owners, sober men and for the most part
reputable citizens, presumably, at L-ast,
are interested in the administration of the
law and its proper enforcement.
It is at least a fair infer nc, judging by
the motives that ordinarily control human
action, that such men will not deliberately
acquit guilty men, in reck Us • disregard of
the interest of the society of which they
form a part, and in the welfare and safety
of which they and their fa mi hies are in-
terested.
The statement often mad ■ that the law
puts a premium upon Ignorance in the jury
box and that the lav/ is such as to exclude
reading, thinking and intelligent men there-
from, has no support in the code of pro-
ceed ure of Texas.
The idea which seems to be entertained
by many people that a man can not s>.t as
a juror in a criminal case who has ever
read of or discussed It, or formed any
opinion in any way concerning it, is alto-
gether erroneous.
If a party, summoned as a juror, has
formed such an opinion as will probably
influence his action in finding a verdict the
inquiry as to his qualifications Stops at.
that point, because whatever that opinion
may be, certainly he is not an impartial
juror.
But though he may Have heard of the
case, and have from hearsay, rumor and
newspaper reports, come to seme conclu-
sion concerning tt, or may even have
formed an opinion which it 'will take ad-
ditional evidence to remove, yet If he sitat--s
upon his oath that he can, notwithstanding
such opinion so formed, go 'into the jury
box and try the case impart ia II\ on tin-
law and the evident' given on he trial,
he lis a qualified juror and the d'-fendant
can not aha'llenge hum for cause. |.-:eagal.l
vs. the State, 22, C.AM.
This rule is certainly as liberal to the
state as any reasonable man can ask and
does not exclude intelligence from the jurv
box, but for lit and honesty there makes
room.
That unsatisfactory and improper results
often follow upon ju,\ trials and that i;
norance and corruption frequently find
their way into the jury box is not 'denied,
but such results are not the fault of th
•system, but is in a at measure c.msed
by the fact that so t ; tny of the nn -I in-
telligent, honest ami n-st educated oi i. us
wdio are eligible as ors, evade jiu \ ser -
vice by means oi gn ads of legal » \ use,
and who, while evading s i vice,
that every good eidzen should do bis
share of, are readie to condemn the find-
ing of those wli » do rve, <if such finding
shcild not be in harmony with 'their pre-
conceived opinions,
The cases where \ licts are the r suit
of corruption are few in proportion to the
large number of ti i . Thousands of ver-
dicts whereby humane but honest men con-
sign their fe'll'ow m i to prison and often
to death pass unnoi d. while one ivc -!v
improper verdict, w i *by law is violate I
and justice d'efe ,n I. racts instant atten-
tion and arouses p. > i ir indignation.
Jurors who rend.' tch verdicts should
be unsparingly eond-'i: :ed by the pr-'ss and
people a'nd be pubKc v rebuked in court.
That tunfit p-r^oti mould s-oin. times b •
drawn, or, if not dr. a, be sunnn oi - i as
talesmen, is in a gi measure una voida
ble, but re-tills, ol't. Imperfect -and un
satisfactory, must - crably be expected
to follow upon tie aeration of human
agencies, and until ' aanity has attained
perfeetiion and men 'incapable of error,
Jurors will at times found amenable to
improper influanco-: i render unjust ver-
dicts. They frwim ;1.v render v. : Mets
which, technically • p <ing, aro correct, but
they are fallible, h e men, sitting in
judgment upon th -ir i Ilow man, and diet -
runs through main is as some lines of
light not drawn fr.un > • evidence admitted
before the jury; son ingestions of huni.ni
sympathy and ab ' , justice of which the
law in terms tak no cognizance an l
which are too subtle be molded into c iid
statutes, but wlvich orally, yet peril.ij s
unconsciously inibi ice the hoiiesiost
jury and lead to re - which, while tech-
nically wrong, at r I'actly just.
It is but fair to ju by the rule and not
by the exceptions, v t the fact that a ver-
dict manifestly wt so surely arouses
and holds popular at dJon Is the b t evi-
dence that such verb s are exceptions.
Subject, as jur e e, to the imperfec-
tions and weakn of humanitv, a:i I
'tempted vis they on* ire to html the sug-
gestion of merc> 1 sympathy rather
than the stern dent in of law and jus;
that they, as a rule. bravely pef'orm their
solemn and often p.i d duties is fir m ire
worthy of praise ti a their ex.- di.aial
errors and failures, a of unreasoning con-
demnation.
The pleas of th are pros-cut-vl bv
officers chosen by ti people and who are
in most instance < * ble men. To the
prompting bf prof ii and official pride
urging them to \ "us -proserin <>n is
added, as I may . passing, .should not
he, the stimulus of i financial reward de-
pendent upon sin- hen-re nothing Is
lacking to secure t » state capable rep-
resentative* before juries,
In many of the -r cases th - official
prosecutor Is aided i»> no ahles't tab in that
the private pros-ecu in employ. - in-
state 4« rarely ov-rm . hod on the trial I
tore the jury.
The chief servant ' agent of the an?.-
in the admin 1stra:> the law -is m- i;
t'rtct judge. Wltho ii 'parage-rnent of
present irvciumflient - :he district ben.-a or
those who have til hat posilt-ion lur . ■
the past twenty y. , t may b<» Mid th >
have not, taken a n>le, perhaps m» i
Ul'Od Up tO the ltd Of the di
judges who heel the tion in earlier .Ir.
m point of legal tr. 'g and scholars!'
for thefir predc •- were In gr-a; pir
men of very givi. a • y. called Ui the i.,r
after a long study 1 thorough ira.n.n :,
and versed deeply n 1 mJ principles
^ it is true thai lncuimbenIs of the
di.stnct bench an, 'he main, capable
lawyers, fully as . < »le a« Te-xas shout I
expect to secuiv foi i" Position, consider
mg the utandard of -'Wpensation she has
by reason of ti
it.ivftly new sta
of moderate me,
blest lawyers fr
frequently err,
pass upon grav
ihout time for i
i. that they do i
; o n or
er err
w authorizes and his
as neither written the
idence, nor 'been upon
I
can r<
and
a li-important reg.
lesry of purpose -t
iv-\ in discharge <
£h office, always
maintain,
rd of integrity
«■ judiciary of
' th ' duties of
laintalnwl and
standard, for
never durin- the fifty years of the exist-
ence of Texas as a state has any judge
chosen lby the people and receiving his
commission at the hands of the intelligent
and rep res. n; ative majority of his district,
ll:l ' 1 ' • >rge of oorruipilon justlv laid
against him.
I hough p ■ . nip ted toy ambition and per-
s 'Do'! an 1 ■; .- .j" visional pride, th.-\ accept
a position, t i > emoluments of wiia h barely
sailb- j'or ,1-eeiit main ten anve, by reason
u hereof th > ieavfe it impoverish-i, vet
w ui clean hands they lav aside un-ootted
th. robes o? .fflea
( w'.- laws and agents i' r their
adaiiiiistrai a who are eflicient. ii wouild
secin satis.; -;ory results should foii-»w.
In my butntrle judgment the results are
as satisfactory as could reas.-'iiaMy he ex-
Poeted i in 1 all the clivumsiamvs and
the exts;conditions.
Vet the coniiplaint often h- rd and the
criticism dulged, ;which on p".;iper occa-
sion and w thin proper limits - -rve-s a use-
ful punpe- is not a i'tog' i ii'M' without
grounds ot -ap'oort; neventh. ,, ;; such cow-
p.aint is 1 r- iueutly u;nivast«nai. and made
without din- ippreciation of t?i ditllcuitles
Of the silila ; li.„.
' 1 ' I>' an ear is ' a lent to
aipp.; cal ions r «r continuanc. iu not ibe
doubted. Tii- law declares tn av shall be
such delay as is necessary t • i- ends -of
justice, and the errors comnii::ed in this
regard arise out of the ditliea of draw-
ing the tie b . we.in undue in and t-o
great delay and in distinguish.a^ between
appacat; as n , I- in good faith md those
having In fact in merit.
Within the last decade or a little more
there has 'been a material eli.cn.-- of the
.aw iai this iregard.
('in tin nances are not now a matter of
right, but iit al. times rest in the sound
discretion of the court, and it may be
safely state.! that many more continuances
are refused than are granted.
' here are, of course, .many occasions
when, for reasons entirely beyond the
c Int.ro 1 o't the court or c.uin- si, continu-
ances are necessary, when either the state
or the defendant, without, fault or pro-
curement, .are unable to produce -their wit-
I)^ss<'s f,)V var'0'us reasons that may readily
In cases of homicide, a churacier of cases
of de.uy in which most complaint is made,
the tragedy in most instances occurs iai
paices frequented by loose and transeut
characters, and time is absolutely neces-
sary to ascertain their 'whereabouts and
serve process upon them, and .manifestly
in a state so large as this, witness, s can
not be produced before the court as reidiiv
as m small and more thickly sealed states.
V!ut granted that every witness is at
hand, immediate trial is not alwavs de-
siraible, nor wii 1 it be found the surest way
to secure results in harmony with right
and justice.
The graver the case the more certain It
is to arouse the popular unhid to a state
ol excitement and passion, and under such
cinciunistanoes the people, from iwhotn the
jury UUUiSt be drawn, are in no condition
oi mind to try and determine the case ex-
cept in accordance with ipre'concvved opin-
ions, which would mot .be a fair and im-
partial trial.
Justice and law, then, demand that the
tria. be postponed until popular excitement
has ' subsided and men are prepared to
his'11vve'^'1 "le evidence and mete out
If such delay is denied the defendant,
and lie is forced to trial before a jury
drawn from the excited, maddened people,
the appelate court w. 11, or at least slu^ild.
and it twon*thy their places would, set aside
and reverse the judgment..
One procedure in a criminal case which
necessarily operates a continuance, and is
often the occasion of severe criticism and
complaint, is a change of venue. Yet there
Is no power vested in the trial courts
more salutary and which should be more
tearlessly exercised.
It. sometimes occurs, and I speak on this
pouvt from experience, that counsel are
unable to present an application in con-
formity with law, for the reason that
those who could conscientiously make the
necessary aflldavits are so terrorized by
prevailing sentiment against the prisoner
that they dare not do it lest tliev call
down condemnation and perhaps violence
upon themselves.
lo put a defendant on trial in a commu-
n;t> so arrayed and aroused against him
wouM he jurllclal murdfr» and the nl.un,
iinpi I'ittii\ duty of a judge under taich oir-
cumstands is to change the venue of his
owm motion, and he wiho would not do it
is a coward, unworthy to hold his high
com m ission.
In I he instance alluded to above four
men had been hurried from the county jail
to escape mob violence and could not with
prudence be returned, ahd to have forced
them to trial in that county, under such
condit.ons, would have been to listen to
and heed popular clamor.
The venue was changed in every case
upon the court's own motion, and though
the delay was deplored, yet when excite-
ment had subsided and a fair trial had
been obtained elsewhere, the action met
popular approval.
The expense Incurred in admln-isterins
the criminal law is >!•■■. a cauwe of coiu-
pli.'nt and to a great e.cfent justly so.
This can be re<luee.i by limitations and
res!riot,oils upon i nam - of attachments
lor witn.K-es by the entire abolition of the
l-'e sy t tn and by . dabllshinenl of <oadu-
sively criminal court- in the larger coun-
ties, or by making a criminal district of
one or more large couniies, thereby secur-
ing speedy trial, when it can b- had with
due regard to the In twists of justice.
There is one agency connected with the
administrat'ou of the law toward which
there 1-j more- of complaint and criticism di-
rected than any other, and that is the de-
fendant's counsel.
Il- is absolutely indispensable to some
of those suddenly developed statesmen who
d'seitMS ev ry issue, from financial prob-
lems to judicial procedure.
Alai.-e of ihe lawyer constitutes at once
the chief plank iu their platform and the
burden of their orations. Yet th-y have
not l.ntelllge.nc- aifllcient to know that
there is not a r "lit they possess oi- -| jp,.
erty th-y enj..> that is not assinvd them
by laws and . uistitutloii-al provisions
which wen- conceive I In 'the brain and de-
ft " led by the bio >d of lawyers.
Straiige to ay, many people of avea'ag-
!'!' <-xl.-nt ill.
I>ibed th-s jo lu'llce against niembcrs \»r
the ;-<;aI prof-.-ion.
Th s is to I- attributed to the fact thai
He-s- self-constituted critics group all men
who hold law lic-enscs under one head o
"lawycts" and Judge all by the sam-
standard.
Tlie unworthy member :-of the legal pro
fes ion, wo . have brought reproaidi upon
It. arc d- a ii a ted "shysters," and ther •
ar- nu'dici! h.\ stcrs.' editorial "shysters"
and cjinni'rcial "shysters," and At would
1).* as un.jast to judge all men who puV-
iie th- • honorable callings by such un-
worthy n . mb-rs of the respective "guilds"
as it is to judge all members of the legal
profession by those who regard neither
fairness, propriety nor honor in the prat
Those representative and .reputable mem-
bers of lb' ! gal profession, who by n*a-
s in of ther character, ability and experi
ence ar. called to defend in importaiir
criminal -ause nc.si no defense at m\
hands. Th-y ar- members or an honor
able prat / ,.oi md otllcers of the eoura
who dlsehar 1 th ir respective duties \\i:n
courage, lideiit.v and integrity.
They are rar-ly found on' the witre
stand and never In the jure
box. yet h i any erirnlnal ca-
be tried, wh eh has to any large «-\
tent attract• ■ It popular attention and cm
corning wh li the public mind has reached
from rum v «»r report jur hearsay .con
elusions adv i e to the defendant, and th
result he an . oqiiittal, and criticism and
condemnatiot at h-ard en every side.
The judc i •' have sternly excluded all
evidence off i by the defendant, but
de.*me I Irrf vani or Improper by the court,
and nerha-p . •- done in many cas-'s,
may have r- I the doubt as to Its ad
mlssllblllty a 1 ' ' the defendant; the st ,?.•
may hav- b. -- on 1 by z-alous and
ab'.e couns-i ad th' jury ho c onp.e- I ,,f
honest. Intell n a w'a . aote i afi. r oar-
fully weighin ■ evidence and applying
thereto the iaw under the ohlfgatioii o.f
as solemn an •»th a ever bound man'
soul to the thion of God. vet all th.se
facts seem to he Ignored, and court, Jury
and counsel ar ill condemned.
Experience .-hows, however, that when
the popu'lace i- tin t by jiussion its 'pri-
mary impulse ; to k sonic special \ -
tini whereon to v.-nt it.-, fury, and in such
Instances as abo\ c,;• ■ d no victim is so
cenveniently hand as the defendant's
The cry goes up: "it'i
others, 'but this la v. y< r.
fy him!" Yet the ,av\>
posed to the chvirj-p- o-i
pt' -mniptlon of iiiiioeen.
the admission of ail -v,
secure acquittal," and d»
se unto us aid
fy him; cruei-
has only up-
auilt the legal
contended tor
me "tending to
aii»ed the facta.
all of which the
duty demands. H
charge, made the
the jury.
Most likely the verdict was right; every
and l doubt not many laymen,
ii'1 cases in which the prisoner
wma ta •; arrested was threatened with
moo violence, yet when passion had sub-
sided and a fair trial with all evidence
that ever existed concerning the matter
presented to the jury, a verdict of ac-
quitta. was rendered, w'hk'h met with pop-
ular and judicial approval.
1 have seen a-ble lawyers called from
tile s -rvice of clients who had paid for
their services, and under order of the
court assume the defense of some penni-
ess and friendless prisoner, and use their
time their books and their brains in his
iiehali without hope of tee or reward, but
n ver have 1 had reason to 'believe that one
aad in any case improperly approached a
jo;or or a witness or resorted to other than
' lp'- |l 'legitimate methods in defense of
I know not how it may he with others,
but as tor mys, f. | am wearied of this
'i171' an(1, vicious clamor against that
pro,cs-non, the members of which have
n\\a> • .viood' tor good government, iaw
who oppose mob violence; who
mi m all ages, and are now, a
five ^ force in society, and have
ner > -n "foremost in the tVies" of the
'C.-n.|-rs ui lib-ty and constitutional gov-
and ord
have ibe
aim-
to
idce.l
he
nds for
.. • - of criminal iaw,
th- leason lies back and behind those-wh
umi-r so.emu vows-, stand as ministering
|»ries(s m the teni'ide of the ,au.
•be court .o> appeals has been charged
• rei|uenLiy with reversing cases on partly
tev-anicai grounds, whereby the ends of jus-
te are defeated.
I hat juiiignients of reversal have been
rendered by that court which were im-
proper. no one 'Would more readily admit
titan tlie members ot the court themselves,
wa.ch is evidenced by the .fact that they
h ive in most instances overruled such judg-
ments as were most seriously and justly
complained of, and t'hey are no longer
precedents, thus evincing a readiness to
admit error when convinced of it, which
is a sure proof of honesty of purpose.
•Iiiidigments are no longer reversed be-
eause ,,| b,id. spelling in the verdict or
"in,.-sion t»i a letter, or where the penalty
was improper.y set forth in the charge,
thoimh the verdict was within the limits
"I th - statutory penalty-such errors .be-
iiia treated as immaterial, and justly so.
' otieii happens, however, that
VNl'!" puibiic term technical er-
V" I • ;UV ,110sl - nniterlal, and the
ooctnite thai if "substantial jus-
llr" 1 ^ oeen done errors of law or of
i»roeedure should be disregarded has no
sl,PI»>ri at any constitutional system of
criminal law.
(,arried to its logical sequence the act of
tne inot- may be as commendable as the
jiiugment oi the court, for if "substantial
justice demands the death penalty, and
the court ignores palpable errors of law,
and the plain requirements of the statute
in order to sustain a judgment affixing such
penalty, the act is unlawful, and the act
of the mob which likewise ignores the law
could not be more so, for it, too, would
do substantial justice."
Every man's guilt or innocence depends
upon what the law is, and the facts of the
case, and the latter can only be arrived at
safely and properly b.v legal evidence, and
il the trial court improperly states the law
or admits improper evidence, an entirely
innocent man may be convicted, and if the
law and established rules of evidence and
procedure can properly be violated by the
trial court, and ignored by the appellate
court, in order to convict one defendant,
on the principle of "substantial justice,"
then by the same method may some inno-
cent man be convicted, and the appellate
court following Its own precedent would
approve the judgment, ignoring the plain
letter and requirements of the law.
Whenever this precedent is established,
no citizen can look to the law and its con-
stitutional agencies for protection of his
person or his liberty.
Let departure be once made from these
established rules of law and evidence,
which are the concrete expression of the
wisdom of the ablest jurists of past ages,
and chaos, doubt and uncertainty and dan-
ger to human rights and human liberty will
inevitably follow.
The judge on the appellate bench, who
ignores plain violations of tlie law on ma-
terial questions affecting the life or liberty
of the citizen and undertakes to decide the
case on the principle of "substantial Jus-
tice," regards more the clamor of the
populace than the obligations of his offi-
cial oath.
At one time in this state, as will be read-
ily recalled, a defendant was convicted of
murder in a case that had attracted
state-wide attention. The record of the
trial went to the appellate court for re-
view. There was found in that record pal-
patio violation of the plain letter of that
law, which the appellate court had sworn
to observe and declare.
The court declared the law as it was
written, but the people had already passed
upon the case, and when tlie a'ble jurist
who rendered the decision affixed his name
thereto he signed bis official death war-
rant, and was executed at the ensuing state
convention for having done hi* Plain
duty under the obligations of his official
oath.
Fortunately for the state and the admin-
istration of the law, ids successor has dis-
played the same lofty courage and sense
of duty, regardless of popular praise or
blame.
The proportion of affirmances in felony
cases to rev i lis by 1 he-court of criminal
appeals for the years 1891. and 18JI2, as shown
by the report of tin attorney general, was
nearly throe and a half to one, or 400 alllrm-
atices to l-l reversals. Certainly this does
not indicate a disposition to recklessly re-
verse cases lor purely technical or unsub-
Ht.i,
Kxumlua lion - will next be made as to re-
sults reached on trials before tlie courts.
Taking the entire state for the year 1891
and 1892 the percentage of convictions In
felony cases was nearly OL' per cent of
cases tried, and in trials for a number of
the higher grades of felonies I he percentage
was from Tii to mi. There will be found In
nearly every county some case of homi-
cide in which I he .1 i aidant is so manifestly
justiflabi# in law and murals that no con-
\iehoii is - xpei ted or possible, yet
a the offens is never barred by
the statute of limitation an in-
dictment and trial is soughit by the de-
iesi inn in ad- ■ to pricure the protection
of .i ,ei-dict. Vet de-pite this fact more
than half the d-fendants tried for murder
T | ' iv -ai.ia'. • of convictions iu felony
i a aiiov>• givea incimde the whole state,
lli thinly populated frontier and the older
. ','1.-1 part ions, and if the statistics had
b-ea confined tif the latter, as would
nianif-sil.v be fair, if comparison with re-
iii in th older slates is made, the re-
mits would show even a larger percentage
n , die p iceiitage averages in many of the
in "a poi-aious counties over 8U per cent.
Tain and space will not be consumed by
lea in midemeanor cases [the pro-
portion of convictions in which, however,
ti may lie sta!- 1 was about 70 per cent|,
as many of thmii are tried in courts pre-
b | ..vcr by ju I • without legal training
or utility ami not necessarily lawyers,
•h nee no result is surprising in such cases.
dOngland is often cited as the model coun-
try for c •rtalnij and dispatch in the en-
toi -e,|j—nt of the law, but conditions are
>.i different there and .here that no com-
parison would.be fair to Texas.
Kagiand has more people in one city
lean ther- is In all Texas and has per-
il ips D0,0ix),000 of -inhabitants In an area
than one-tlfth as large as Texas, and
i msi a biliary force amounting to a small
mi.. Sac commands by princely salaries
ii ablest talent lor the bench, and the
; .-! - comments on the evidence, sums up
•alimony and practically controls the
bet, which is to give defendant "trial by
jury" only ill name- not in fact.
Vet, notwithstanding thtse advantagesfor
i enforcement of th" law, the proportion
convictions in England Is, in the courts
; animal isslze, according to the ■Co-un-
- 1 o .; Gaze.tie, only 75 per cent, not us
as that iu very many counties in
T xas.
I an the figures above given, it would
: . ai that the complaint so often made
ii jurors are prone to acquit is not sus-
tan- I by the facts, and that In the greater
i. iai • r of cases the defendant Is convict-
ed
It was obviously Impracticable to re-
vow the entire code and code of criminal
p' 1 ' lure within the limited time permitted
by the press ot other duties for the prep-
i' i ton of this paper, hence I shall content
n\.. If with hast> suggestions as to what
ap; ars i i in • to (>e desirable amendments.
J'b greatest source of expense in adnun-
i--1 ration of the criminal law arises from
. asv ndictments in which are returned
on uisutHeient evidence.
About 10 per cent of the felony cases for
th- y-ars is^l and Isjrj 11 he latent statistics
at hand| were nol pressed.
Th s . oiid iu a great measure be ab via ted
by amending the oath of the grand Jurors
o to swear them to return no indict-
ment upon information as to what any ihu
mi will swear, to have before theni win
tie ■ ; upon both Bides as far as practicable
and the d-fendant himself, if they s«. tit.
and to return indictments in no case where
th-y would not. as petit jurors, render a
verdict wf conviction, and tint necessity oil
rigid observation of this oath should bo
impressed upon them by the court.
•Article 394. €. C. P., In so -far as tt for-
bids the district attorney from being witl*
•tne grand jury while discussing the pro*
ot~ finding a bill, should be amended,
l here ;s no reason for the prohibition, or|
tne contrary, many indictments, on insuffi*
cien evidence, would be prevented, ami
greit expense saved to the state if th<
district attorney was consulted and adi
vis-^i with as to the sufficiency of thd
evidence.
'He is specially interested in -having every
indictment returned where conviction i*
probable, and is on the other hand interest-
ed in seeing that indictments are not Te-
turned where the evidence will not sustain,
conviction.
The evidence before the grand jury
should be tak m down in writ-
ing, and be signed by the witness, even if
a stenographer and typewriter be a neces-
sary adjunct to the grand jury.
If this were done witnesses would not,
as is often done, recklessly vent their mal-
ice in the grand jury room and then de-
cline to give tlie same evidence on the
trial. They would hesitate to swear false-
ly when they knew their testimony would
be preserved and perpetuated.
The statute as to perjury should be so
amended and simplified that it' a witness
makes one statement in the grand jurv
room and a statement on the trial so radi-
cally different that both can not be true,
he could be convicted of perjury.
'I he .statutes relating to assaults with in-
tent to com milt certain offenses should be
amended, as results reached thereunder
are at present PMogical and unjust.
Assaults with intent to rape and murder,
and the offense of burglary, should be di-
vided into degrees, with penalties propor-
tional to the gravity of the act and thei
circumstances under which the offense was
committed, and the result.
The defendant who, for purposes of lust,
assaults a woman and beats and wounds
her iii the struggle, or who invades a pri-
vate house with such designs, even if he
fails of his purpose, and the burglar who
enters a private house with a deadly wea-
pon in the night time, should both be
hanged, at least such penalty for the com-
mission of such offenses in the first degree
should be within the discretion of the jury.
There Is a class of cases which logically
falls between assaults to murder and ag-
gravated assault and battery, which for the
sake of brevity may be classed under the
general head of "whltecappiing." Such of-
fenses constitute now only aggravated as-
sault and battery. They should be defined
as "felonious assaults" and be punished byt
imprisonment in the penitentiary.
The statute as to swindling should be
simplified and amended to meet existing!
commercial conditions.
The law concerning perjury should be «o
changed as to make simpler indictments
for that offense, one most common, yet.
most difficult to frame 1 nd left men t for or
to convict upon trial as the law now is.
The minimum penalty for horse theft is
file same as that for murder in the seoond
degree and the maximum 'is higher than
that for burglary or any species of theft.
The penalty should be reduced to corre-
spond with that for other similar offenses.
The term "money" is defined as to cer-
tain offenses, but not as to the offense of
"misappropriation of public funds." and.
where such "misappropriation" Us charged
as having 'been "money," unless the state
can prove legal tender, or gold and silver,
conviction can not be had. The necessity
of amendment, is obvious. [Lewis vs. State.
28, C. A. U.J
Frequently magistrates admit persons to
bail where facts do not warrant such ac-
tion. I recall no process whereby such ac-
tion can be set aside, provided the ball
furnished be sufficient. Thils power is ca-
pable of great abuse and the statute should
authorize the state's counsel to present the
action to the district judge for review and
he be authorized to reverse the order and
refuse ball If the law and facts demand
such action.
The court should be allowed to appeal
from judgments quashing indictments, at
least to the extent of having the sufficiency
of the 'indictment determined for fifture
guidance.
An incompetent or corrupt judicial offi-
cer, at a time when another indictment
would be barred, can. by quashing an In-
dictment, set entirely free a defendant
charged with any offense except murder,
and the state has no remedy.
Article 749, C. <\ p., should be amended
so that inquiry can be made as to the cir-
cumstances under which a confession is
made, so that it should not necessarily be
excluded because the defendant was un-
der arrest and was -not warned.
It is possible under the code of procedure
concerning the time after sentence before
the death penalty shall be executed for a.
judge to indeUmUely postpone the execution
of the sentence, as no maximum time is
named, but lie Shall not fix the date earlier
than thirty days.
The method of Impaneling a jury in a
capital case -Should bo changed.
T'he n lumber of challenges should be re-
duced, say to respectively twelve and -six.
and thirty men should be fully tested and
qualified as to the particular case and their
names placed on a lilst from which each
side should st rike, a« in 'felomle.s less tha a
capital.
This would be fair al like to the state anil
defendant, and greatly expe&Ute and Sim-
pi. fy the .process of selecting a Jury.
There may be other changes and amend-
ments which could be wisely (suggested, but
I am admonished to haw ten to a conclusion.
However efficient the agencies for the ad-
fmini.-tra'tivm of the law may be or how-
ever plain be the law itself, behind the iaw,
the com < and juries and the lawyers are
the controlling influences of the -people antl
public sentiment.
Regard for t'he law, for the rights of
■others and for human life depend upon the
moral training win!oh -!-s given at home ac
the fireside and the family circle.
The verdicts of juries will usually reflect!
the standard of morals and regard'for law
prevailing in the community. Judged by
results in Texas and taking the numiber of
convictions as the test of efficiency of tha
-courts, there is no reasonable ground of
complaint.
If asked what, in my Judgment, would be
most conducive to render t'he court stilt
more efficient and at the same time guard
the rights of the citizens and the state, £
would say abolish the fee system entirely;
let no otilcer be dependent in any way upon
the result of any case,
Oilve every defendant the privilege of
being tried before courts of which the judge
is a capable lawyer, whether such defend-
ant be charged with a felony or miwde-
aneanor, or whether he be defendant in ti
civil or criminal case, wholly abolishing the
present system of county court's. Pay dis-
trict Judges at least twice their present
salary, or more if necessary to conim&ndi
the highest order of talent; elect them for
ten years, subject to removal iby the su-
preme court for incompetency or corrup-
tion. and let them be eligible but for one
term, so t'hat their Interest as candidates
and their duties as judges may never con-
flict. B>lsisever us far as possible the aivil
and criminal jurisdiction of the courts, as
under the prevailing system of practice aj
Judge fully qualified In 'both lines of the
•law i'S not 'often found. .
Courts thus organized will be found effi-
cient, and while delay in legal proceedings
can never be wholly obviated, yet greater
dtapu'teh and accuracy will be attained and
justice Ik* done at Kvs expense to the peo-
ple than under prevailing conditions.
Judge Hume of the committee on deceased
members asked for further time in whlcln
to make a report.
The convention then adjourned until thi*
morning at 10 o'clock.
TH'E BANQUET.
The annual conclave of the legaJl light*
will close 'to-night with a grand banquet!
at the Beach hotel, wlul-eh is under the Im-
mediate supervision of Manager Alexander
and which will be a royal affair, lit i«
undei\sto.*i that Thfos. H. .Franklin of tSuii
Antonio, the present vice president of the
association, will be elected president to-
do y, and that he will be master of cere-
mo titles at the banquet.
Chairman liall and his committee on
toasts have arranged the following set
toa.sts for the evening:
"The President of the United States,"
Hon. Seth Shepard.
"The Texas Bar Association," Hon. J. H.
McLeary.
"Our Oourts of Civil Appeals," Chief Jus-
tice i>. It Tar I ton.
"Pin liar," Hon. YV. L. Crawford,
'a Jalv-'sren, the Queen of the Gulf," Hon.
J. It. Stulubs,
"The Ladies," Judge H. (It. Webb.
There will also be informal toasts anl
responses.
CHANGE OF VENUE GRANTED.
Gonzales, Tex,, July 25.—-In the case oC
the State vs. J. U. liiain, charged with th«
murder of G. C. Harben, Judge Spoonec
entered his disqualifications and Hon. J. B.
IMbrell of Seguin was agreed on . i tha
special Judge, who entered an order grant-
ing the defendant a change of venue t»j
Guadalupe county, where the case will b«
tried tn November.
«
■ 0
■
,
Shiloh's Cure, the great cough and croup
cure, Is In great demand. Pocket size con-
tains ^5 doses, only -Go. Children lovs it,
bold by J. J. fcichoti. OalvftJioii.
Upcoming Pages
Here’s what’s next.
Search Inside
This issue can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Newspaper.
The Galveston Daily News. (Galveston, Tex.), Vol. 53, No. 125, Ed. 1 Thursday, July 26, 1894, newspaper, July 26, 1894; Galveston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth467740/m1/5/: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Abilene Library Consortium.