USA > Texas > The bench and bar of Texas > Part 27
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47
Personally, Judge Willson is a man of exceedingly kind and amiable disposition. Calm, mild and self-possessed. he is courteous in his manner, and a warm and constant friend. He was married in 1853 to Miss Susan E. Priest. an excellent and cultured young lady of Woodville, and the daughter of his legal preceptor. Since his appointment to the bench he has resided in Austin, where as a citizen he
341
SAMUEL A. WILLSON.
is no less esteemed than as a judge of a tribunal whose pro- ticiency and personnel might challenge comparison with any court in any country.
One of the first important judicial acts of Judge Willson was his declaration, in Williams v. The State, 12 Texas Court of Appeals, 395, of the unconstitutionality of the act of 1881, known as " the common sense indictment act." In this act the Legislature had authorized and prescribed forms of indictment dispensing with statements which at common law had always been considered as essential to the description of the offense. In this case he decided in an able and un- answerable opinion that the import and attributes of the term " indictment " must be taken to be the same which it hore when it was adopted in the bill of rights, and that the Legislature had no power to change them; nor could the words, " take, steal and carry away," or any other like terms, be construed by application or intendment to con- stitute a sufficient description of the crime of theft. This was followed by a number of affirmatory decisions and the act was repealed.
In Robertson v. The State, Ibid. 548, he decided the question, in regard to which there were many conflicting authorities, that the Legislature can revoke an occupation license at pleasure, and that, therefore, the sale of spirituous liquors, under a license previously granted in a locality sub- jected to the operation of the local option act, subjects the vendor to the penalty of its violation. But in his dissenting opinion in the case of Holly . The State, 14 Texas Court of Appeals, 517, he held that while a reasonable doubt must be weighed in favor of the validity of legislative acts, and that an implication of the want of power in the Legislature must be clear and strong to authorize the judiciary to invalidate its acts, the clause of the Constitution requiring the Legislature to enact the prohibition of the sale of in- toxicating liquor under certain circumstances, does not empower it to make the simple gift of liquor an offense, unless the gift was made for the purpose of evading the law.
Civil rights of negroes. Cavitt v. The State, 15 Texas,
342
BENCH AND BAR OF TEXAS.
Court of Appeals, 196. In Texas, courts have no power to revise or control the action of commissioners in the selection of jurors unless in clear cases of fraud or cor- ruption, or of some great wrong calculated to shock the sense of justice or defeat the ends of law ; and while the statute does not require the commissioners to consider the question of race or color in the selection of jurors, it does not prohibit them from this discretion. Upon this subject the law is wisely silent.
-
In Shultz v. The State, 15 Texas Court of Appeals, 258, he held that the constitutionality of the statute au- thorizing an indictment to be substituted by the district or county attorney for an original one which has been lost, and whether such substituted instrument is an indictment of a grand jury as required by the bill of rights, are open questions ; and that it is safer in such cases to have another indictment returned by the grand jury. When, however, an original indictment has been answered by plea, there can be no question that its loss can be remedied by the statutory method of substitution; for, in that case, no right of the accused is imperiled.
The revisors of the Penal Code introduced a new statute, before that time unknown to the laws of the State, making it criminal slander to impute the want of chastity to a female. Judge Willson wrote the first opinions construing this stat- ute, and in Layerone v. The State, 12 Court of Appeals, 426, he held that the indictment must set forth, at least sub- stantially, the language or writing which constituted the imputation ; and on rehearing, in Patterson r., The State, Ibid. 458, which had been decided to the contrary when he came upon the bench, he held, in an able opinion, that the defendant in actions of this character must confine himself to evidence in proof of the particular acts or conduct upon which he based his imputation, or of the general reputation of the female at the time the alleged slander was uttered.
In King r. The State, 13 Texas Court of Appeals, his opin- ion clearly defines the character of the plea of self-defense and the rules which govern it in Texas jurisprudence, and in
;
343
SAMUEL A. WILLSON.
Jones v. The State, Ib. 1, he reviews the previous decisions in regard to the burden of proof and ably elucidates the principles and rules which obtain in relation to that subject.
In LaNorris v. The State, 13 Texas Court of Appeals, 33, the conductor in charge of a Pullman sleeping car was charged with maintaining a bar and retailing intoxicating drinks to passengers without having paid the tax occupation required by the statute. Judge Willson held that the circumstance of locomotion did not prevent the liability of the conductor and that an employe who sells an article when the occupa- tion tax is unpaid is equally liable with his principal. This decision abolished the nefarious traffic which had become prevalent on the railroad lines in the State.
In his separate opinion in Morgan v. The State, 16 Texas Court of Appeals, 628, he discusses elaborately the new and interesting question as to the effect of gross neglect and improper treatment of wounds in modifying the degree of guilt, and construes the Texas statute to be in contraven- tion of the common-law rules in regard to the subject, so far as to shift the guilt of homicide from the person who inflicted the wound to the physician or surgeon through whose neglect or maltreatment death ensues. In this view of the question he received the concurrence of Judge White.
Judge Willson has also decided many important civil cases. In G. C. & S. F. Railroad Company v. Graves, White & Wilson, Con. Rep. 301, he rendered the first decision in Texas as to the effect and import of the word damage in the present Constitution of the State, which has been approved by the Supreme Court, in 60 Texas, 656. His opinions are all written in a clear and concise manner, and forcibly exemplify his searching ability and sound judgment, and those cited present features of first impression in the jurisprudence of the State. Being in the prime of life and vigor of health, his judicial record predestines a future usefulness which will add new glory to the Texas bench.
344
BENCH AND RAR OF TEXAS.
J. M. HURT.
James Mann Hurt was born in Carroll County, Tennessee, on the 15th day of December, 1830. His father, for whom he is named, was a native of Virginia, and a Baptist clergy- man, and his grandfather, Philomen Hurt, was a -Virginian soldier in the Continental army, and served under General Green in the battle of Guilford Court House. His mother was a daughter of David Marshall, of Richmond, Virginia, who removed at an early day to Tennessee, and was one of the first settlers of the town of Lebanon.
The subject of this sketch was reared chiefly on a farm, but enjoyed good educational advantages at an academy in Kentucky, and at Bethel College. Having completed his education at the latter institution, he read law three years in the office of Hon. Milton Brown, at Jackson, Tennessee, afterwards graduated in the law department of Cumberland University, and in February, 1857, received his license from the Supreme Court of Tennessee. In 1858 he married Miss Matilda L. Douglass, the accomplished daughter of Judge William Douglass, of Osceola, St. Clair County, Missouri, and began the practice of his profession at that place, but soon afterwards removed to Sherman, Texas, where his energy and popular traits of character soon gained him friends and clients, and he took a prominent stand at the bar.
He had been reared a Federalist and inspired with strong Union proclivities, but at the outbreak of the civil war he cast his lot with the Confederacy, and has since been a staunch advocate of Democracy. He enlisted in the service as captain of a company of infantry, which he raised in Grayson County, and which formed a part of the First Texas battalion of sharpshooters in Maxey's brigade. He was at
345
J. M. HURT.
the siege of Port Hudson, and afterwards served under General Joseph E. Johnston in his campaign for the relief of Vicksburg. In December, 1863, he was ordered with his company to the Trans-Mississippi department, and served under General Maxey until the surrender, when he marched his company back to Grayson County, and there disbanded it.
In 1866 he was a member of the Constitutional conven- tion, assembled to re-organize the State government under the Johnson reconstruction, and was an active and efficient member, particularly in his efforts to preserve the rights of the people and the dignity of the State. He was soon afterwards appointed by Governor Throckmorton district- attorney, and acquired the reputation of being one of the best prosecutors in the State ; but in 1867, in consequence of his inability to take the oath imposed at that time upon Southern officials, he resigned his office and returned to his practice.
In 1870 he was re-appointed by Governor Davis, and accepted the position with the understanding that his politi- cal principles should suffer no restraint. This was subse- quently found to be entirely imcompatible with the violent Republican policy of the administration, and, in 1871, he was removed without notice to make way for a compliant incumbent. On returning to the bar he found his practice large, particularly in the criminal branch of the law, and in 1876 he removed to Dallas, where his practice embraced a still larger field.
In 1880 he was elected one of the three judges of the Texas Court of Appeals, a position which he continues to fill with ability and honor. He is a man of talent, a lawyer of ability, and a first-rate judge. His percep- tions are remarkably quick and acute, and he is an excellent judge of law. His ready and accurate interpre- tation of the motives of men and the springs of human . action, his knowledge of the methods of law by which these are reached, and its application to all the varied features of crime, render him one of the best criminal lawyers in Texas, and peculiarly qualified for the bench of criminal appeals. He seems to abhor mere technicalities, and during his career upon the bench has almost invariably
346
BENCH AND BAR OF TEXAS.
dissented from every opinion of his associates based chiefly upon mere technical questions. He delights in pursuing the unhedged path of fact, and brushing away the trammels of antiquated forms, drive straight at the crest of crime and the gist of the offense. Yet, he is an amiable and kind- hearted man, full of good-natured humor, and an admirable companion.
He possessed in a high degree that sparkling mirth and living amiability which laps away more brambles, levels down more hillocks, surmounts more obstacles of life, and confers upon its possessor more true happiness than any other attribute of human nature. Power may reach the limits of its control ; force may blunt its weapons against the dull hide of obstinacy ; reason may exhaust in vain its logic upon the dull ear of perversity, and the unction of suasion may congeal before the cold threshold of misan- thropy ; but good nature wields a soothing influence over the most obdurate circumstance, and binds the sternest fate a captive to its charms.
Notwithstanding its discountenance by the mock dignity of asceticism, and the pharisaical gravity of the self-right- eous, a merry humor rarely fails to find a kindling recipro- cation in the bosom of the most embittered misanthrope. It is indeed the most efficacious antidote to that more preva- lent spirit which not only magnifies the ills of life, but soars away upon the wings of excursion in search not of the olive branch of hope, but of the rising peaks of sorrows which it knows not of.
The hilarious man dispenses a contagious cheerfulness which penetrates and often dispels the most settled gloom. He weaves the garlands of pleasantry of the very thorns of life, and hangs a rose upon every thistle. Such a man is truly a promoter of philanthropy, and such is in a high degree the character of Judge Hurt. He is always equally apt and ready for a capital trial or a capital joke.
At the bar his main fort lay in his art of captivating the jury, an effect which his humor and abundant store of pleasing anecdote rarely failed to accomplish. In variety of humor and sparkling repartee he is perhaps more like Curran than any other member of the Texas bar.
347
J. M. HURT.
His analysis of the character and incidents of the plea of insanity in King v. The State, 9 Texas Court of Appeals, 515, from which the other judges dissented, is novel and ingenious. The chief question presented was : -
When the plea of insanity is interposed, is the burden of proof on the State to show sanity, or is it on the defendant to show insanity ?
In discussing this proposition he said : -
" Brush from this question the dust of ancient days, sepa- rate it from its old companions, and its solution is perfectly simple. Before entering upon an analysis of this subject, permit us to allude to some very strange and inconsistent expressions used by the learned judges in treating of this question. The following are of the number alluded to : 'As insanity excuses the commission of crime, on the ground that the actor is not a responsible being,' etc. 'The onus of proving the defense of insanity, or, in the case of lunacy, of showing that the offense was committed when the pris- oner was in a state of lunacy, lies upon the prisoner.' ' It is rather in the nature of a plea to the jurisdiction, or a mo- tion to change the venue. The defendant, through his coun- sel and friends, comes in and says that he is not amenable to penal jurisdiction.' A very respectable volume could be made of such remaks, but those cited will suffice for our purpose.
" Let us take a steady look, for a moment, at these propo- sitions. For example, take the first. What sane mind can comprehend the possibility of a crime being committed by an insane person? If the prisoner is insane, there is no crime. If there be crime, there is no insanity. Insanity can not excuse crime, from the fact that, if insane, there is no crime to be excused. These observations apply to the second. Now to the third: ' Plea in the nature of a plea to the jurisdiction.' This plea never draws in issue the guilt of the prisoner. Under this plea, sanity or insan- ity would be the issue, separate and independent from the question of guilt, to be determined. But the court has jurisdiction of the crime, if any has been committed ; and how are we to sever the one from the other? Shall we first
348
BENCH AND BAR OF TEXAS.
try the question of sanity, and then that of guilt? Not so ; for on the threshold we are met with the fact that, under the plea of not guilty, evidence on the question of sanity can be introduced. Behold what darkness and confusion surround the question of sanity ! a subject around which gather more vagaries and inconsistencies than infest any other question in the whole range of criminal jurispru- dence.
" But what shall be said upon the proposition that the plea is 'in the nature of a motion to change the venue?' If there is the faintest, the most remote analogy existing be- tween the plea and a motion to change the venue of a case, we frankly confess our inability to trace it. We had thought the object of a motion to change the venue was to remove a cause from the county in which the indictment was found to some other one for trial, and that the ground of removal was based upon the fact that an impartial trial could not be had in the proper county -- that in which the indictment was found. To what court or county shall it be taken? Will not the same reasons for the change be found in the court or county to which it is transferred? Most unques- tionably they will. These conclusions being true, the case could only find a court of last resort in the tribunal of heaven. This would defeat the ends of human justice, since the primal idea upon which it is based carries with it the further idea of human expiation for human wrong.
" These strange and inconsistent expressions which we find in the writings of eminent text-authors are the legitimate offspring of fundamental error which underlies their treat- ment of this entire subject, and we merely allude to them here to intensify and concentrate attention upon this parent error, from whose fruitful loins have sprung all of these ill- considered statements upon this question of sanity. In jurisprudence nothing can be more valuable than terse state- ments of principle. On the other hand, hastily conceived and unhappily worded enunciations not infrequently open the flood-gates of litigation, with its vast attendant expense, and lead to judicial murder under all the forms and solemni- ties of the law.
349
J. M. HURT.
" The fallacy of this fundamental error can be made more fully to appear by comparing two propositions : -
" 1. Sanity is an inherent, intrinsic element of crime.
" 2. Sanity is not an inherent and intrinsic element, but is extrinsic and independent of the crime.
" The last proposition contains a monstrous fallacy, the fruits of which are visible in so many of the text-books, and which are followed out in many of the enunciations in the adjudicated cases. If sanity is an inherent element of crime, no well-ordered mind can stop short of the conclu sion that the State must carry its burden and prove it. Feeling the force of this, writers have treated it as an ex- trinsic matter, separate and distinct from the question of guilt, and hence those strange and incomprehensible expres- sions above referred to.
" Let us pay our respects to this last proposition, and see if from a bare touch it will not crumble to dust. 'Sanity is extrinsic.' Therefore the prisoner is to be tried for the act, and the question of intent or malice is not drawn in is- sue. This for the simple reason that an issue formed upon the question of intent or malice irresistibly includes that of sanity; for there can be no intent or malice without sanity. Therefore it follows from this erroneous position that the jury, in viewing the act sought to be punished, must strip it of the intent which prompted it, and look alone to the act. To this we enter our solemn protest.
" We now invite attention to what we believe to be the true position, which is that sanity is an inherent, intrinsic, and necessary element of crime. Is this a correct proposition ? Is it not a self-evident proposition ? If murder can be com- mitted without intent or malice, then the proposition is false .; if not, it is true. But we do know, if it be possible to know anything, that, to constitute murder, the act of killing must be attended not only with the intent to kill, but with malice; and we also know, with the same degree of certainty, that there can be no intent or malice without sanity. It therefore follows, beyond any shadow of doubt, that sanity is an inherent, intrinsic, and necessary ingredi- ent of crime.
350
BENCH AND BAR OF TEXAS.
、
" We now return to the first proposition stated at the be- ginning of this opinion, which is as follows: ' When the plea of insanity is interposed, is the burden of proof on the State to show sanity, or is it on the defendant to prove in- sanity ?' We have thus stated the proposition because we find it so stated in the books, but it is not a practical one. There is no such plea known to our Code as applicable to a trial of a criminal cause. We have four pleas - two spe- cial, and the pleas of ' guilty ' and ' not guilty ' - and this plea of ' not guilty' is a denial of every material alle- gation in the indictment. Under it, evidence to establish the insanity of the defendant, and every fact whatever tend- ing to acquit him, may be introduced. It follows that under this plea the defendant denies every constituent element of the offense charged, and this plea of ' not guilty' is the same as if the defendant had denied specifically each ele- ment of the crime charged.
" This leads us to the consideration of the charge in this case, which is murder, and is defined thus : 'Every person with a sound memory and discretion who shall unlawfully kill any reasonable creature in being, within this State, with malice aforethought, either express or implied, shall be deemed guilty of murder.' From this definition it follows that, to constitute this offense, the slayer must be ' of sound memory and discretion ; ' a ' reasonable. creature' must be slain, and the slayer must be actuated by 'malice.' We have then, first, ' sound memory ' in the slayer; sec- ond, a 'reasonable creature' slain ; and the slayer prompted by ' malice.' These constitute murder, and nothing less than all these can constitute murder. By what principle of logic, reason, or justice can either of these ele- ments be eliminated from the offense? From this it follows that an indictment charging this offense embraces all the above elements, whether specifically named or not; and though the indictment omits to charge that the defendant was of 'sound memory,' yet charging ' malice,' sanity is necessarily included. The problem which equals mur- der is composed of three members: First, ' sound mem-
351
J. M. HURT.
ory ' of slayer; second, ' reasonable creature' slain ; and, third, ' malice ' in the slayer.
" Let us see if we can eliminate from this problem one of these members, and leave every element of the offense in the problem. There can be no ' malice' without sanity; hence, ' malice' includes sanity. We therefore have, first, a ' reasonable creature ' slain ; second, a malicious slayer - murder. Hence the charge in the indictment, that the kill- ing was with ' malice aforethought,' charges the slayer to be of ' sound memory and discretion.' If this conclusion is not correct, we most unhesitatingly assert that the indict- ment is worthless ; for we have found, under our Code, sanity to be an element of murder, and, by well-settled rules of criminal pleading, an indictment which fails to embrace in its allegations all of the constituent elements of the offense is fatally defective. The authorities approach nearer to unanimity upon this question than any other known to us.
" If the above analysis be correct, and we think it is, it devolves upon the State to prove every inherent element of the offense ; and as we have found sonity to be such an element, it rests upon the State to prove sanity. Still holding with a firm grasp the proposition that sanity is an inherent element of the offense, and as there is no such thing in law as separating the elements of an offense so as to cast the burden of a part upon the State, and, as to the rest, to require the defendant to take the burden of proving a negative, it follows that the existence of each ele- ment is an offirmative proposition, the proof of which rests with the State. The idea that the burden of proof shifts is in direct conflict with the philosophy of criminal juris- prudence, and at war with fundamental principles ; for we hold that, with regard to necessary ingredients, it never shifts. If two or more elements constitute an offense, which of these elements must be proven by the State, and which must be proven not to exist by the defendant? If elements, do they not all stand upon the same plane, or are there some which prove themselves? If there are, they are not elements. Are we to require the defendant to prove the
352
BENCH AND BAR OF TEXAS.
non-existence of that element - insanity - upon which in- tent and malice depend, and yet hold the State to prove in- tent and malice? To us it is impossible to harmonize, logically, these positions.
" We are now led to meet the most plausible, difficult, and potent position which can be assumed upon the other side. And here we concede that it is supported by the weight of authority ; but we do not think it is founded in principle, and if not founded in principle, to follow would be danger- ous. It is this : The fact of killing being admitted, and that beyond doubt the prisoner did the killing, and sanity being the normal condition of all persons, the law presumes the prisoner sane until he shows to the contrary ; and there- fore the burden of proving insanity rests with the prisoner. It will be seen at once that the struggle is with this pre- sumption of sanity.
" Let us move quietly but closely up to this gentleman. and try to see who he is. The name of this witness is pre- sumption. He is a venerable gentleman. He was contem- porary witn the first-born principles of enlightened jurisprudence. For truth and integrity he has never been excelled by any witness. His means of knowledge are un- surpassed, having for a foundation the laws of nature, and the truth of his evidence is corroborated by the experience of man through all ages. The effect of his evidence is the production of not only a mere prima facie case, but full and complete conviction when not opposed. Upon his evidence alone, when not contradicted, sanity being the only issue. man has been made to expiate the violated law with his life. When he speaks to the sanity of the prisoner, his evidence meets with an approving response in the mind of every in- telligent and honest juror, for their experience corroborates his testimony. But he is not infallible. He never testifies to the sanity of any particular individual. He is never positive, but always presumptive evidence. Sanity being the normal condition of man, he presumes that to be the condition of the prisoner. With the parents or relatives of the prisoner he is not acquainted. He is not aware of the fact that perhaps some of the prisoner's blood-relatives are
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.