Ex Parte Martinez, Jr.

145 S.W. 959, 66 Tex. Crim. 1, 1912 Tex. Crim. App. LEXIS 192

• Court: Court of Criminal Appeals of Texas
• Decided: March 27, 1912
• Docket: No. 1457.
• Status: Published

Opinions

HARPER, Judge.

In this case it appears from the record on file that relator was oil July 29, 1911, adjudged guilty of murder, and his punishment assessed at death, in the District Court of Reeves County, and in accordance with the verdict of the jury and the judgment of the court he was sentenced to death on Eridajq the 1st day of September, 1911.

Subsequent to the date of conviction an application for a writ of habeas corpus was granted by Hon. W. L. Davidson, presiding judge of this court, which writ was made returnable on October 4, 1911. By agreement of the parties the cause was set for hearing before this court on November 3, 1911, on which date the application came on to be heard, and on which said date was filed with the papers in the ease a petition for certiorari by relator. No order was made granting leave to file this petition and none requested by relator.

The petition for a habeas corpus reads as follows: “Your petitioner, Leon Cardenas Martinez, Jr., makes this his application for a writ of habeas corpus, and for that purpose shows to the court that petitioner is held in custody by Sheriff T. C. "Weir on commitment or other process to this affiant unknown, charging this affiant with murder; and this affiant further shows to the court that heretofore on the - day of July, 1911, this affiant was tried in the District Court in the County of Reeves on a charge of murder, that the verdict of the jury assessed the punishment of death against this affiant; that this affiant was represented by counsel appointed by the court, and employed by affiant's father and friends; that the attorney appointed was Judge Parker, of Pecos, Texas, and the attorney employed was Judge Estes, of El Paso, Texas, the initials of said attorneys being unknown to affiant. That when the jury returned the verdict of guilty, assessing the death penalty, this affiant told his attorney that he wanted his case appealed to your Honorable Court, to wit: the Court of Criminal Appeals of the State of Texas. That this affiant was at once caused to be put in jail, and about two hours thereafter on the same day on which the jury returned the verdict as aforesaid,' this affiant was brought back into court, was required to stand up and be sentenced; that when the judge, to wit, Judge Isaacks, pronounced the death sentence on this affiant he asked affiant in substance if he had anything to say why the sentence of the law should not be pronounced on him, and this affiant replied thereto that he desired that the case be appealed to the Court of Criminal Appeals of Texas, and instructed affiant's attorneys to give notice of appeal and perfect the same, which they promised to do; that nffiant was at once carried back to jail, and thereafter on the same day was carried by tbe sheriff to Midland County, and thence to Abilene, Taylor County, Texas, where he now is in custody.

“That affiant was not given an opportunity of the two days provided by law in which to file written pleadings, make a motion for a new trial, or otherwise perfect his appeal. That affiant never in any way in person waived said right, and never in any way agreed that the sentence might be at once passed upon him as was done by the court; never in person waived his right of appeal, and never consented to the waiver by his attorneys. This affiant further states that he has been informed by his father, Leon Cardenas Martinez, Sr., a creditable person, and believes the facts to be true, to wit: that said attorneys representing this affiant gave notice of appeal in open court as provided by law in said court in which this affiant was tried as aforesaid, and thereby perfected said appeal to the Court of Criminal Appeals of the. State of Texas, and this affiant was further informed by his father that a crowd of angry and murderous men gathered around this affiant’s said attorneys, and told them in substance that if they did not withdraw said appeal, that it would not be the Mexican who would be hung, but his two lawyers, and in this way intimidated and put said attorneys in fear of life to such an extent that they withdrew said notice" of appeal, and waived the two days notice given by law in which to prepare motion for a new trial and perfect the appeal, and agreed that this affiant might be at once sentenced, which was done by said court on the same day on which the verdict of the jury was rendered.

“This affiant further states that he was on the night following the conviction hurried off by the sheriff of Reeves County to Midland County, and thence to Taylor County, to keep a mob of angry citizens in Reeves County from killing this affiant, and he .never -had any opportunity to appear before the District Court of Reeves County and perfect his appeal, or take an appeal in the way provided by law, further than was done by his attorneys as heretofore stated on information.

“This affiant further states to the court that he is only a little past fifteen years of age, that he is 'not 17 years of age, that he is not guilty of the charge preferred against him, and is not the person who committed the deed charged against this affiant in the bill of indictment on which this affiant was tried and convicted as aforesaid. That by mob violence he has been denied the right of perfecting his appeal to this court as he has been informed and believes to be. That by mob violence the appeal which his attorneys perfected for him was causéd to be dismissed without this affiant’s consent or knowledge; that this affiant, a young and innocent Mexican, will be exécuted without a hearing on appeal unless this court enforces its jurisdiction in the way and manner provided by law.

“Wherefore this affiant prays that jurar Honor grant him a writ of habeas corpus, commanding T. C. Weir, the sheriff'of Tajdor County,, Texas, who now holds this affiant in custody, to bring affiant before your honorable body, that you may hear and determine whether or not your honorable body has jurisdiction by reason of the facts aforesaid, and to further determine whether or not this affiant is lawfully held in custody and restrained of his liberty by said sheriff; that affiant is unable by reason of his confinement to present a writ for habeas corpus to Judge Isaaeks, judge of the District Court of Beeves County, by reason of his confinement aforesaid, and by reason of a fear of being lynched by mob violence should he attempt so to do.” '

Upon a hearing of the writ of habeas corpus it was shown affirmatively that no notice of appeal was given. In fact, it was affirmatively shown that when the motion for a new trial was overruled by the court, the district judge asked applicant’s counsel, Judge Parker, if he desired to give notice of appeal, when the judge was notified by the attorney that no notice of appeal would be given. Our Penal Code provides: ' “Article 883. An appeal is taken by giving notice thereof in open court and having same entered of record.” In construing this article as early as 1859, in the case of Eairchild v. State, 23 Texas, 176, Judge Boberts held that unless this notice was given in open court and entered of record the appeal could not be entertained. This has been followed in an unbroken line of decisions from that day until this, the last case in which this matter was passed on by this court being the cases of Offield v. State, 61 Texas Crim. Rep., 340, 135 S. W. Rep., 566, and 568, in which the authorities are partially collated. In the case of Boan v. State, 65 S. W. Rep., 1068, this court says: “In death penalty eases in order to clothe this court with jurisdiction, the appeal must he taken at the term at which defendant is tried and convicted. Having failed to give notice of appeal during the term, appellant has forfeited his right of appeal to this court,” citing authorities.

Appellant’s counsel, the district judge, the district attorney and the sheriff of the county all concur in the statement that no notice of appeal was given by relator or his counsel, and the record in this case shows affirmatively no notice of appeal was entered of record at the term at which he was tried.

As shown above, the only grounds in the application for habeas corpus alleged for the writ were that notice of appeal had been given, and that without notice to this relator his attorneys had withdrawn the notice of appeal, and dismissed same without his consent. By the evidence adduced on the hearing in this court, this is shown not to he true. No other reason is assigned in the application why the writ should be granted, hut in argument on the day of hearing relator’s counsel suggested other reasons, which we will hereinafter consider.

Whatever may he the rule of procedure in other jurisdictions, in this State it has been and is the rule that the writ of habeas corpus can not serve the office of an appeal; it was not designed to operate as a writ of error or certiorari, and does not have their force and effect. The writ of habeas corpus does not deal with errors or irregularities which render proceedings voidable merely, but such only as render them absolutely void. Such has been the established rule in this court from its inception. In the case of Ex parte Schwartz, 2 Texas Crim. App., 81, this court quotes approvingly the following from Hurd on Habeas Corpus:

“A proceeding defective for irregularity and one void for illegality may be revised upon error or certiorari; but it is the latter defect only which gives authority to discharge on habeas corpus. An irregularity is defined to be a want of adherence to some prescribed rule or mode of proceeding, and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner. Hurd on Habeas Corpus, 333, citing Tidd’s Pr., 434, and 3 Chitty’s Gen’l Pr., 509.”

This court has been called upon to pass upon this question in the past year, and the rule announced in the Schwartz case is adhered to. Ex parte Cooks, 61 Texas Crim. Rep., 449, 135 S. W. Rep., 139. See also Ex parte Oliver, 3 Texas Crim. App., 345; Ex parte McGill, 6 Texas Crim. App., 498; Ex parte Boland, 11 Texas Crim. App., 159; Ex parte Dickerson, 30 Texas Crim. App., 448; Ex parte Beeler, 41 Texas Crim. Rep., 240; Ex parte White, 50 Texas Crim. Rep., 473; Ex parte Crawford, 36 Texas Crim. Rep., 180; Ex parte Keeling, 54 Texas Crim. Rep., 118; Ex parte Cassens, 57 Texas Crim. Rep., 377.

Hot only has this been the unbroken rule of decision in this court from its creation until the present day, but such was the rule in the Supreme Court in this State when it had criminal jurisdiction. (Perry v. State, 41 Texas, 488; Darrah v. Westerlage, 44 Texas, 388.) In all these eases numerous authorities will be found cited sustaining the rule, including decisions of the Supreme Court of the Hnited States.

In Ex parte Reed, 100 U. S., 13, 25 L. Ed., 538, Mr. Justice Swayne says: “The writ of habeas corpus can not be made to perform the function of a writ of error. To warrant the discharge of the prisoner, the sentence under which he is held must not be merely erroneous and voidable, but absolutely void.” And in Ex parte Siebold, 100 U. S., 371, 25 L. Ed., 717, Mr. Justice Bradly says: “The only ground on which the court will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction of such court over the person or the cause, or some other matter rendering the proceedings void.” (See also Ex parte Kearney, 7 Wheat., 38; Ex parte Watkins, 3 Pet., 193; Ex parte Milligan, 4 Wall., 2; Stevens v. Fuller, 136 U. S., 468; In re Wo Lee, 26 Fed., 471; In re Jordan, 49 Fed., 238; Smith v. Whitney, 116 U. S., 167; In re Frederick, 149 U. S., 70; In re King, 51 Fed., 434; In re Rowe, 77 Fed., 161.)

However, it is equally well settled that the writ of habeas corpus will lie to secure a release where the proceedings are absolutely void. Ex parte Stein, 61 Texas Crim. Rep., 320, 135 S. W. Rep., 136; Ex parte Kramer, 19 Texas Crim. App., 123; James v. State, 21 Texas Crim. App., 353; Mato v. State, 19 Texas Crim. App., 112; Thompson v. State, 57 Texas Crim. Rep., 437. This rule is also the rule in the Supreme Court of the United States. Ex parte Wilson; 114 U. S., 417.

While no grounds are alleged in the application for habeas corpus that would render .the proceedings void, yet the evidence disclosed that relator, was convicted at a special term of the District Court of Reeves County, Texas, and relator’s attornej's in their argument insist that chapter 83, page 116, of the Act of the Twenty-Ninth Legislature, which authorized special terms of the District Court to be held, is unconstitutional. In the case of Ex parte Young, 49 Texas Crim. Rep., 536, it is held by this court that this Act of the Legislature provides for the organization of a grand jury and the trial of new cases, and this being true, the district judge could call a special term as he did in this case. The constitutionality of this statute was specifically passed upon by this court in the case of Ex parte Boyd, reported in 50 Texas Crim. Rep., 309, and the statute authorizing special terms of the District Court held valid under the provisions of article 5, section 7, of the State Constitution, which reads: “The Legislature shall have power, by general or special laws, to authorize the holding of special terms of the court, or the holding of more than two terms in any county for the dispatch of business.” In the latter case the relator Boyd sued out a writ of error to the Supreme Court of the United States to test the constL tutionality of this Act of the Legislature, which writ was by that court dismissed for want of jurisdiction. Boyd v. United States, 209 U. S., 539, 52 L. Ed., 917, citing Leeper v. Texas, 139 U. S., 462; Duncan v. Missouri, 152 U. S., 377; Gibson v. Mississippi, 162 U. S., 565; Allen v. Georgia, 166 U. S., 138; Brown v. New Jersey, 175 U. S., 172; Layton v. Missouri, 187 U. S., 356; Rogers v. Peck, 199 U. S., 425.

The constitutionality of this Act was again assailed in the ease of McIntosh v. State, 56 Texas Crim. Rep., 134, and it was again held that this Act of the Twenty-Ninth Legislature (page 116, Session Acts), providing for special terms of the District Court to be held under an order of the district judge, is constitutional and valid. The facts show that the judge of the District Court did call a special term of the District Court, organize a grand jury, indict the appellant in that case, order jurymen selected and summoned as provided by the laws of this State, and that relator was tried at said special term. Said Act provides;

“Section 1. Where it may become advisable in the opinion of the judge of the district in which any county in the State of Texas-may be situated, to hold a special term or- terms of the District Courts therein, such special term or terms may be held.

“Section 2. The judge of the district in which a county may be situated, in which it is deemed advisable by such judge that a special term of the courts should be held, may ■ convene such special term of the courts at any time which may be fixed by him. The said judge may appoint jury commissioners, who may select and draw grand and petit jurors in accordance with the law; said jurors may be summoned to appear before said courts at such time as may be designated by the judge thereof; provided, that in the discretion of the judge, a,grand jury need not be drawn or impaneled.

“Section 3. The grand jury selected as provided for in the preceding section shall be duly impaneled and proceed to the discharge of its duties as at a regular term of the court.

“Section 4. Any person indicted by the grand jury impaneled at a special term of the courts may be placed upon trial at said special term.”

A special term of the District Court of Reeves County, Texas, was ordered to be held at the county seat of said county by Hon. S. J. Isaacks, judge thereof, beginning on the 24th day of July, 1911, and to continue in session until adjourned by order of the court; a special grand jury was- ordered to be selected, summoned and impaneled as provided by law, which order was duly entered upon the minutes of the court. All necessary steps required by this Act of the Legislature, and the other provisions of the laws of this State are shown to have -been complied with in convening said special term of the District Court. When court convened a jury commission was selected in a legal manner, who proceeded to select grand jurymen and petit jurymen, who were duly summoned as shown by the evidence in this case. The grand jury at this term of the court on the 25th day of July returned into open court an indictment, charging relator with the murder of Miss Emma Brown. The case was set for trial on July 28, and a special venire was ordered drawn and summoned to. appear on said date. Relator was served with a copy of the indictment, and a list of the jurymen summoned within the time and in accordance with the provisions of our laws regulating such matters. When the case was called for trial no motion of any character was made by relator or his counsel bringing into question the legality of the proceedings; no motion for change of venue or other motion was filed, other than a motion for a postponement or continuance on account of the absence of his mother. It being made known to the court that his mother was in the county, and her attendance on court could' be secured, the motion was overruled, and his mother appearing during the trial and testifying in the case, no exception was reserved to the action of the court in overruling the motion for a continuance.- A jury is shown to have been impaneled in accordance with the provisions of the laws of this State, no complaint being made or reserved to the manner of their selection, and no complaint is now made that the jury thus selected by the State and the relator or his counsel were guilty of improper conduct during the trial, or had not truthfully answered the questions propounded. The provisions of the. laws of this State, and especially article 673 of the Code of Criminal Procedure, are shown to have been fully complied with in the impaneling of the jury. A verdict was rendered finding relator guilty of murder in the first degree, and his punishment assessed at death. A motion for new trial was presented, and by the court overruled. Kelator’s counsel notified the court that no appeal would be taken, when in accordance with the verdict of the jury and judgment of the court, relator was sentenced. All orders, judgments and decrees required by law are shown to have been entered in the minutes of the court.

We hold that the proceedings are not void, but were regular in every respect, and in accordance with the decisions hereinbefore cited we hold that no relief can be granted to relator under the writ of habeas corpus herein by him sued out.

However, on the day the habeas corpus was set for hearing, relator filed with the clerk of this court what is termed a petition for certiorari. Ho leave was re.quested and none granted by the court authorizing or permitting relator to file same, and it was not presented to the court or either judge thereof. However, as the death penalty was inflicted in this case, we have carefully read the application. By this means it is sought to bring this'case before us for review. At common law we understand a defendant had no right of appeal, as given by the Code of this State, but if upon conviction he desired to appeal his ease, he presented, to the Appellate Court a petition wherein he recited all things of which he complained, and pointed out specifically the matters in which he claimed the trial court erred to his prejudice. This appeal was not granted as a matter of right, but if the Appellate Court, upon viewing the petition, thought such errors were committed and the defendant probably suffered injury, or an improper verdict had been rendered, granted a writ of certiorari commanding that the entire record be sent up that it might review the case. The petition must set out the ifijury or error complained of or the writ would not be granted. While the writer of this opinion has grave doubts as to the jurisdiction of this court to issue a writ of certiorari until jurisdiction has been conferred on this court by notice of appeal being given in the trial court, yet we do not deem a decision of that question necessary in this ease. Section 5 of article 6 of the Constitution only confers power on this court to issue the writ of habeas corpus, and, under such regulations as may • he prescribed by law, issue such other writs as may be necessary to enforce its jurisdiction. It is thus seen that by the Constitution we are only given power to issue a writ of habeas corpus and no other writ in eases where this court has not obtained jurisdiction of the case, and it has been held by this court that unless notice of appeal is given at the term at which a conviction is had, this court has no jurisdiction of the case. Clark v. State, 3 Texas Crim. App., 338; Fairchild v. State, 23 Texas, 176; Hughes v. State, 33 Texas, 683; Solari v. State, 3 Texas Crim. App., 482; Johnson v. State, 8 Texas Crim. App., 671; Truss v. State, 38 Texas Crim. Rep., 291; Hurlock v. State, 43 S. W. Rep., 992. If this court under the Constitution and statutes of this State has no power or authority to issue any writ other than the writ of habeas corpus until the jurisdiction of this court attaches, and the jurisdiction of this court does not attach to any case until notice of appeal has been given, then it would appear that where no notice of appeal was given in the trial court, this court would not have the authority and power to review a case under the common law writ of certiorari. If a person really gave notice of appeal, and the trial court wilfully refused or inadvertently failed to enter such notice, or a person was prevented through force or fear from giving notice of appeal, we gather that jurisdiction would be sufficiently conferred upon this court that upon application made in reasonable time, this court could and would issue a writ of mandamus compelling the entry of the notice so given or prevented from being given. (Quesada v. State, 34 Texas Crim. Rep., 116.) Neither relator nor his counsel have made any such application to this court to have notice entered. As hereinbefore stated, the facts in this ease show that no notice of appeal was given, and while this case may suggest reasons for conferring additional power and authority on this court to issue other writs, or for the Legislature to enact laws that will cause the jurisdiction of this court to attach in certain cases without notice of appeal in the trial court, yet this court has no power to legislate or enlarge its jurisdiction further than is conferred upon it by the Constitution or laws of the State. However, under all the authorities, it is held that a writ of certiorari can not be granted in vacation, nor in term time except upon order of the court, or by a majority of the members thereof, and no such order having been made, nor undertaken to be made, the decision of the question of whether this court, before obtaining jurisdiction of a cause, would have th.e right to issue a certiorari to bring a case before it for review, is not necessary in this case, the application itself .not stating reasons sufficient, and does not point out errors that would authorize the issuance of the writ under the common law. But inasmuch as the death penalty has been assessed, and the entire record in the case has been filed in this court, we have carefully reviewed same, with the view that if the record presented such a case that we felt relief should he granted, we would take up and decide the question whether or not we could issue the common law writ to bring the case before us for review, and if so, if the merits of the case demanded it upon a proper application being presented to do so. If we decided we did not have the power to issue the writ, and an injustice had been done, then in that event to recommend to the governor a reprieve until the Legislature could confer on us such power as would authorize us to act.

In the petition for certiorari relator complains of the convening of a special term of court, and the impaneling of a grand jury which indicted him, yet as hereinbefore shown, this was done in accordance with the laws of this State, and relator recites nothing which he says was done in violation of the statutes of this State. The only other allegation in the application is that he was denied the right of an appeal to this court. As hereinbefore stated, no notice of appeal was given, but on the hearing hereof his attorneys testify that they were prevented from giving notice of appeal by the action of a number of citizens who approached them after the verdict had been rendered.

To treat the case as if notice of appeal had been given, and this case was now before us on appeal, and we were passing on same, what does the record show? In his statement Judge Parker, of counsel for relator in the trial court, says:

“We made the following bills of exception in the case, and possibly some others which I do not now recall. When the State read the confession of the defendant, it read all of the confession, except that part of it where defendant said he was sixteen years old. We objected to this on the ground that all of the confession should be read by the State.

“The State proved by the official stenographer and his notes that the defendant, while a witness on the stand in a former criminal case, at Barstow, Texas, testified that he was seventeen years old. We took a bill of exceptions to the court’s failure to limit this evidence as impeaching testimony.

“The father and mother of the boy both testified and after they had both testified as to where the defendant was born, the date of his birth, the number of children that had been born to them, and their respective ages, we then offered in evidence the marriage certificate of the father and mother, showing when and where they were married; we offered this certificate as corroborative of the fact that the witnesses were in fact the father and mother of the defendant, and would best know the age of the defendant, and also as corroborative of the credibility of the father and mother, and as corroborative of the defendant’s statement in his confession. The court excluded this certificate, and we took a hill of exceptions to such ruling.”

In regard to the question here first presented, while the State introduced only part of the confession, yet the record discloses that relator was permitted to and did introduce the remainder of the confession, so it was all before the jury, and no error is presented.

In regard to the second bill, the fact that relator had voluntarily testified in the case of P. K. Holmes in January before this trial that he was more than seventeen years of age, was admissible as original testimony, and the court should not have limited the effect of the evidence to impeaching purposes. Statements made by a person accused with crime, prior to an arrest, in regard to an issue in the case, are always admissible in evidence, if the State desires to elicit same.

In regard to the third, the failure of the court to permit the marriage certificate to be introduced in evidence, there was no issue but what the witnesses were the father and mother of relator. This was uncontroverted, but if it were not, a marriage certificate would not prove nor tend to prove that the couple named in the certificate was the father and mother of any particular person; nor would said certificate be corroborative of the credibility of the father and mother; nor would it tend to corroborate relator’s statement in his confession. Hothing is herein stated that would render such certificate admissible in evidence. If the father and mother had testified that relator was born in lawful wedlock, and the certificate had been offered to prove that it would be impossible for relator to have been born since the date of marriage and be over seventeen years of age, its materiality might appear. But no such state of facts are presented in the affidavits of relator’s attorneys, in the motion for a new trial, or in the application for habeas corpus, nor for writ of certiorari, hence, we naturally conclude that the date of the certificate would have been of no service in this respect, and in no other way could it have been material. The testimony of the father and mother would not indicate that such was true, but, on the contrary, that its date was such that it would have been possible for relator to have been born in lawful wedlock and still have been more than seventeen years of age. To say the least of it, the rejection of the- certificate was an immaterial matter for any of the purposes herein stated it was offered.

The only other grounds in the motion -complain of the admissibility of the written confession of relator, and the insufficiency of the evidence to sustain the verdict. The evidence amply sustains the verdict, the confession of relator showing an unprovoked killing. The confession reads as follows:

“On July 22, 1911, about three miles from Saragosa, I met Miss Brown, who was riding in a buggy. I asked her to let me do what she had promised. She had promised to let me fuck her. When I asked her on the road on July 22, she said I would have to go somewhere else. I told her I just had to do something. She said, 'What do you mean, you son-of-a-biteh ? I am going to have you arrested.’ I told her she did not need to have me arrested, all I wanted was for her to do what she had promised to do. She said she would kill me, and put her hand to her hip. Then I commenced shooting, and shot four times with a 25-caliber automatic pistol. Her horse ran away, and when I headed the horse she stopped and got out of the buggy. When I got off my horse the girl ran. She had a stick in her hand. I then stabbed her in the back with my knife. When she turned around she hit me with her fist and I stabbed her four or five times in the breast. She never hit me with the stick. I got on my horse and loped away to Saragosa. I did not tell anyone •until I was arrested. She was standing up when I left her. After eating supper at home I went to Crenshaw’s store and' worked. On the morning of July 23, 1911, I met John Oates and Eloyd Cren-. shaw in a buggy. Floyd told me that Miss Brown had been found dead; that she had been shot. I afterwards told Jim Mayfield about her being shot. Then I ate dinner and went to Old Saragosa, and from there I went to Mr. Honaker’s place, where the body of Miss Brown had been brought. I looked through window, but could not see the body. I stayed at Honaker’s almost an hour and then with Henry Everett I went to a watermelon patch and ate a melon. I was coming out toward Old Saragosa when the officers arrested me. I had the gun that I did the shooting with, but the knife was at home in my other pants. Miss Brown did not pull any pistol at any time. When I told tlie> officers about having killed Miss Brown I did not tell them about her threatening to kill me, but I did tell Mr. Stuckler last night. This all happened in Reeves County, State of Texas. I Avas riding a dun mare, unshod—a little horse. The mare belonged to Crenshaw & Co. I killed Miss Brown about four o’clock in the afternoon. I had talked to Miss Brown at the store where I Avorked, on the morning of July 22, and that was when she told me I could fuck her. I‘am sixteen years old. Was sixteen June 10, 1911.

(Signed) Leon Martinez.”

The testimony of District Attorney Brady shows that the confession of relator was freely and voluntarily made after being duly warned by him that any statement he might make could be used in evidence against him, and the confession was admissible over the objections urged. On direct examination and cross-examination of the sheriff by relator’s counsel, it was shown that the dun mare which relator was riding made a peculiar track, her left forefoot was split square off, so it left an open space on the foot, and made a mark that one could identify the track, and the sheriff identified the tracks made by this mare as the one that was following the buggy. He took the mare to the place and compared the tracks. Relator was shown to have been riding this mare on the evening that Miss Brown was killed.

On the question of the age of the relator, his mother and father testified he was only fifteen years of age. Lester Majors testified that he was the court stenographer and that in the trial of P. K. Holmes in January, 1911, relator was a witness, and on. that trial relator swore he was seventeen years of age at that time. S. H. Crenshaw testified that in April, 1911, he received an invitation to a birthday party of relator. That the invitation was written in Spanish, and relator read it to him, and that it said it was to celebrate relator’s eighteenth birthday, and on that occasion he gave relator a present. Eelator was at that' time working for the witness, and the invitation was in the handwriting of the father of relaton. Pat Moran testified that the father of relator had informed him that relator was ■ sixteen years of age more than a year before this tragedy.

The court in his charge submitted both murder in the first and second degrees, and instructed the jury: “A person for an offense committed before he arrived at the age of seventeen years shall in no case be punished with death, and if you find from the evidence in this case that the defendant was under the age of seventeen years at the date of the killing you will not assess his punishment at death, even though you find him guilty of murder in the first degree, as hereinbefore defined.” Thus it is seen that this issue was submitted to the jury, and they found against this contention of relator, and under the evidence if the case was before us on appeal we would not feel authorized to’ disturb their verdict on this issue.

While the court’s charge fairly and fully submits the issues made by the evidence, yet in the motion for new trial, nor in the application for the habeas corpus, nor the certiorari is there any complaint made of any paragraph of the court’s charge, but if the case was before us on appeal we would not be authorized to review the charge, for by article 723 of the Code of Criminal Procedure of this State, it is provided that a judgment of conviction shall not- be reversed for errors in the charge unless such errors were excepted to at the time or in the motion for a new trial, and no such exceptions were reserved.

Thus it is seen that if the ease was before us on appeal this court, if it followed the law and decisions of this court, would feel impelled to affirm the judgment of the trial court, and if as relator contends he instructed his attorneys to appeal his case, and they were - prevented from so doing by the conduct "of certain citizens, no different result could or would have been attained.

It will be seen by reading the application for habeas corpus herein copied in full, the only ground relied on was the failure to perfect an appeal in the case, and as herein shown had an appeal been perfected, no relief under it could or would havé been granted relator. In the application for writ of certiorari that no appeal was perfected is the main reliance again, yet in said application no such errors are pointed out or assigned as would authorize the issuance of the writ under the common law. However, in the application relator states that he is a citizen of Mexico, sojourning in the United States, and under the treaty existing between the two countries, and the provisions of international law, he is entitled to a speedy trial before an impartial jury. This may be conceded. Every citizen of the United States is entitled to a speedy, public trial before an impartial jury, and a citizen of a foreign country, residing within our borders, charged with crime, is entitled to and should receive all-rights, privileges and benefits accorded to one of our own citizens— no more and no less. That relator claims to be a citizen of our sister [Republic, Mexico. This would entitle him to no greater consideration, or additional rights, than are accorded to our own citizens charged with crime. If relator has been tried in accordance with the laws of this State, in which he had been residing for a number of years, that are made applicable to all persons charged with crime committed within the borders of this State, he has received all that international law or the treaty entitles him to. In no paragraph of the motion for a new trial, in no line of the application for a writ of habeas corpus, in no syllable of the application for writ of certiorari, in no word of the testimony is the fairness or the impartiality of the jury that tried relator assailed. That they were qualified, competent and impartial jurors at the time they were sworn in to try said cause, is nowhere questioned. That he was indicted by a grand jury empaneled under our laws, is proven beyond question, and no complaint is made in regard to their fairness or impartiality, or that they acted improperly.' Our statute provides that a person charged with crime shall be served with a copy of the indictment two dajrs prior to being called upon to announce for trial. Belator received this notice and a copy of the indictment two days before the day set for trial. He was served" with a list of the venire drawn from which the jury was selected, in accordance with our law. Ho motion was made to quash this venire or set it aside, and even now no complaint is made of the mode and manner of the selection of the jury, or statement made that for any reason they were not suitable, proper and competent persons to sit in judgment in his ease at the time they were selected. The fairness of the trial judge, or his charge to the jury is not assailed, but everything is based on matters alleged to have occurred subsequent to the trial and which it is not alleged and could not in any manner have affected the Tesult in the case in the trial court. The only complaint is that he was denied or prevented from perfecting an appeal to this court. We have herein shown that had an appeal been perfected, no such error- or matters were assigned in the motion for a new trial as could or would have resulted in any benefit to him, and having been tried and convicted in accordance with the laws of our State applicable to all charged with crime, the fact that he was a citizen of another country, but who was and had been residing in this State for a number of years, entitles him to no privileges not accorded to our own citizens. In the case of Barrington v. Missouri, 205 U. S., 483, the Supreme Court of the United States holds:

“The question of citizenship is immaterial as affecting the jurisdiction of this court under section 709, Revised Statutes. French v. Hopkins, 124 U. S., 524. Hor are we aware, as Chief Justice Waite said in Spies v. Illinois, 123 U. S., 131, of any treaty giving to subjects of Great Britain any different measures of justice than secured to citizens of this country. And the general rule of law is that aliens are subject to the law of the territory where the crime is committed. Wildenhus’s ease, 120 U. S., 1; Carlisle v. United States, 16 Wall., 147; People v. McLeod, 1 Hill (N. Y.), 377; Wharton, Conflict of Laws, sec. 819.”

In the court below relator did not plead that he was a citizen of a foreign country, and that he had been denied any guarantees to such citizens; in the motion for a new trial no such question is raised, and neither is it raised in -the application for writ of habeas corpus to this court. The first time that it is alleged that he is a citizen of Mexico, domiciled in the United States and in the State of Texas, is. in the application for writ of certiorari filed with the clerk of this court without having obtained leave of this court to file same, and in said petition no grounds are alleged that would indicate he was not given a trial in accordance with the laws of this State applicable alike to all persons charged with crime under the laws of Texas.

We are of the opinion that there is no merit in any of the contentions of relator, and that he should be remanded to the custody of the sheriff of Reeves County, Texas.

The above opinion was prepared in December last, and when in consultation on January 3, 1912, our presiding judge indicated he would not agree thereto, he took and has had the record since that date, and, as he in his opinion delivered to us Tuesday of last week has stated conclusions wholly at variance with the facts as we gather from the record we have concluded to attach to and as a part of this opinion, the evidence adduced on the hearing. It is as follows:

Judge S. J. Isaacks testified that he was judge of the 70th Judicial District of Texas. “The instrument you show me is dated July 24. The order was made on Monday morning, and was placed on record on that day. I drew the order, that is, I dictated .it to my stenographer.” The order was introduced in evidence, and reads as follows:

“Reeves County, In Vacation.

July 24, 1911.

“Whereas, there was- on July 22, 1911, committed in Reeves County a horrible murder on the person of Miss Emma Brown, and whereas, the sheriff has apprehended one accused of having perpetrated the crime, and whereas, public policy demands that the accused be given a speedy trial, and whereas, it is in my opinion advisable and necessary that a special term' of the District Court of Beeves County be holden in said county for the purpose of impaneling a grand jury to investigate said killing and to try any person that said grand jury may present for said killing.

“It is therefore ordered by me, S. J. Isaacks, district judge, that a special term of the District Court of Beeves County be convened and holden in the courthouse of said count3r, at Pecos, Texas, on this the 24th day of July, A. D. 1911, beginning at 2 o’clock p. m., and to continue till duly adjourned for the purpose of impaneling a grand jury to investigate the killing of said Emma Brown, and to make such other investigations as said grand jury and the court may deem expedient and necessar3r, and for the purpose of trying any and all persons indicted by said grand jury, .and for the purpose of transacting any other business that may legally come before the court.

“It is further ordered that this order be entered on the minutes of the District Court of Beeves County.

S. J. Isaacks, Judge,

70th Judicial District of Texas.

“State of Texas,

County of Beeves.

“I, H. F. McKellar, clerk of the District Court in and for Beeves County, Texas, do hereby certify that the above and foregoing is a true and correct copy of the order convening the District Court in special session July 24, 1911, as the same now appears of record in the minutes of said court in volume 3, page 445, of said records.

“Witness my hand and seal of said court at office in Pecos, Texas, this the 31st day of October, A. D. 1911.

(Signed) H. F. McKellar,

(Seal) Clerk District Court, Beeves County, Texas.”

At this juncture Mr. Cunningham, of counsel for relator, stated that they desired to place relator on the stand, as they desired to have him returned to Waco on the afternoon train. Belator, Leon Martinez, was then placed on the stand and testified: “My name is Leon Cardenas Martinez. I am a native of the Bepublie of Mexico. I was born in Gallega, State of Durango. My father’s name is also Leon Cardenas Martinez. I am a part of his family, and was living with him when arrested. My father is a citizen of the Bepublie of Mexico. He nor I have never taken out naturalization papers to become citizens of the United States. I am not twenty-one years old. I am the same person who was sentenced to be hung by Judge Isaacks on the 29th day of last July. I remember the occasion, and can state what occurred. The judge said I had com mitted a horrible crime, and the punishment of the law was that I be hung by the neck on the 1st day of September, 1911. He asked me whether or not I had anything to say why sentence should not be pronounced against me, and I told him I wanted to take my case to the Court of Criminal Appeals and my lawyers would do the rest. He made no reply to that statement. I did not • see either of my attorneys after I was sentenced. I saw Judge Parker after the verdict was read, but did not see him after sentence was passed. He came to me after the verdict was read and I told him I wanted my case appealed, and he told me he was making a motion for appeal. At the time I was sentenced I talked with him before the sentence was pronounced, when I told him I wanted to take my case to the Court of Criminal Appeals, and he then told me he would not do that. That-he was sorry for me. I was then taken to jail, and I have not seen Judge Isaacks since he passed sentence on me. I did not waive the right of appeal, and I did not agree that my attorneys should waive the right of appeal. I remained in jail until three o’clock that night when I was removed. I was sentenced on the same day that the jury brought in the verdict. The jury brought in the verdict about half past one or two o’clock, and I was sentenced about an hour and a half or two hours later. I did not waive any of my rights, and did not waive the right of two days in which to file written pleadings. My attorneys were Mr. Estes and Judge Parker.”

Cross-examined: “I talked with Judge Parker and Mr. Estes the first time on the morning of the trial. When the court passed sentence upon me I told him I wanted to take my case to the Court of Criminal Appeals and that my lawyers would do the rest. I think the whole court was present when I made that statement. I think the district attorney, Mr. Brady, was present. Mr. Estes was not present, but Judge Parker was in the courtroom.' I do not know Mr. E. W. Johnson, and do not know whether he was present or not. I do not remember whether the sheriff of Reeves County was present or not, and I do not remember whether the sheriff of Midland County was present or not. I remember some of the rangers were present, but do not remember which ones were present. I remember only one, a small man, with black hair. I was not present when my motion for new trial was presented and overruled. I do not remember to have been present in court when Judge Parker announced to the court that no appeal would be taken. I said I do not remember seeing him present the motion for a new trial.” In answer to the question: “Q. And didn’t he go to you after it was overruled and tell you no appeal would be taken, that you had no grounds of appeal?” The relator answered: “A. He did not say that; he said he could not appeal.” “I do not remember whether or not Judge Isaacks asked my attorney, Judge Parker, if he desired to give notice of appeal.”

Redirect: “Judge Parker and Mr. Estes were not permitted to talk to me alone. Before the trial I talked to them in the presence of an officer. I never talked to them when an officer was not present.”

Recross: “I do not know whether or not my attorneys ever asked permission to talk to me. They never called to see me at the jail. I was arrested between four and five o’clock Sunday evening, and was carried to Pecos that night, and was then carried to Midland on Monday. I was brought back from Midland Thursday about three o’clock in the evening. I learned I was indicted Wednesday night. The sheriff of Midland County served me with a copy of the indictment.” In answer to the question: “Wasn’t that served on you Tuesday evening?” the relator answered: “I do not remember. My best knowledge is that it was Wednesday evening or Wednesday night. I was served with a copy of the special venire the same day. They were not served at the same time. I was served with a copy of the indictment one evening about six o’clock and was served with a copy of the venire next morning.”

The attorneys for relator then stated they desired to waive the presence of the relator, when Judge Isaacks was recalled and testified:

“I have examined this instrument and it is a certified copy of the order appointing jury commissioners. It was made on July 24, and placed on record the same day. I read it on the record on that date.” The order was introduced, and reads as follows:

“Be it remembered that on this the 24th day or July, A. D. 1911, there came on to be held and was held a special term of the District Court of Reeves County, Texas, which said special term was held in pursuance of an order made by the judge of the 70tli Judicial District on July 24, 1911. Said term was held at the courthouse in the town of Pecos, Reeves County, Texas. While the following proceedings were had, court was duly called by the sheriff and the following officers were present, vto wit:

“Present and Presiding Honorable S. J. Isaacks, district judge, Will P. Brady, district attorney, H. H. McKellar, district clerk, and C. Brown, sheriff. The court was called to order by the judge and the following, among other proceedings, were had and orders made, to wit:

“It appearing to the court that no grand jurors and petit jurors had been drawn and summoned for this special term of court, it is ordered by the court that W. W. Ruhlen, Sid Cowan and J. H. Heard be and are hereby appointed jury commissioners to draw a grand jury and petit jury for this term of court, the said W. W. Ruhlen, Sid Cowan and J. H. Heard were sworn and instructed by the court, and returned and afterwards came into open court with the envelopes containing the names drawn as grand jurors and petit jurors, and the court after administering the oath required by law to the district clerk delivered to said district clerk the envelopes con taining the commissioners names and of the grand jurors and petit jurors presented by said jury commissioners.”

This was properly certified by the clerk of the District Court. The witness continued, “the grand jury was empaneled .on the next day, July 25, by order,” which order reads as follows:

“July 25, 1911. On this the'25th day of July, A. D. 1911, came on to be organized the grand jury for this special term of this court and a list of persons heretofore selected by the jury commissioners at this term of this court and summoned to serve as such grand jurors, were called and the following persons were found present and found to be qualified to serve as such grand jurors, to wit: T. H. Beauchamp, T. B. Pruett, Jno. Y. Lilley, T. Y. Casey, C. L. Heath, Chris Ritz, O. M. Henderson, Woody Browning, A. H. Phillips, R. R. Smothers, C. W. Goedeke, and E. G. Bowles.

“And- it appearing that the foregoing twelve persons were selected by the jury commissioners at this term of this court and found qualified to serve as grand jurors, the said twelve persons were ■ duly sworn and empaneled as a grand jury for this special term of court and T. H. Beauchamp was appointed foreman of the grand jury, after which the court instructed the grand jury as to its duties.”

The witness continued: This seems to be the minutes of the court where the grand jury returned the indictment in cause Ho. 616, The State of Texas vs. Leon Martinez. It was returned on Tuesday as shown by the instrument itself, the minutes reading as follows: “In the District Court, Reeves County, the 25th day of July, A. D. 1911.

“On this day the grand jury in a body, a quorum being present, appeared before the court in session, and through their foreman delivered, into open court, to the judge presiding, the following bill of indictment, to wit:

“Ho. 616.

“The State of Texas

vs.

Leon Martinez,

which said indictment was then and there, by the court, ordered to be filed.”

This is an order made on July 25 setting down the case of The State of Texas vs. Leon Martinez, Ho. 616, for trial on July 28, 1911. It reads as follows:

“The State of Texas, In the District Court, Reeves County,

vs.

Ho. 616.

Texas.

Leon Martinez.

The 25th day of July, A. D. 1911.

“On this day the above styled and numbered cause is set for trial July 28, 1911, at nine o’clock a. m.”

This is an order of the court empaneling the petit jury on the 28tli day of July. They were the jurors drawn by the jury commissioners. The indictment was returned by a grand jury drawn by the jury commissioners. I remember examining all the above orders and they were entered on the days named. This is the order empaneling the petit jurors for the term. The order reads as follows:

“On this 28th day of July, A.' D. 1911, came on to be organized the petit jury for the present term of this court, and a list of persons heretofore selected by jury commissioners appointed by the court, said jurors summoned to serve as jurors at the present term of this court was called, and the following named persons were found present and -found to be qualified to serve as such, to wit: J. P. Meeks, Frank Burress, C. C. Caldwell, W. T. Christian, A. J. Hart, H. C. Barstow, E. W. Clayton, Albert Sisk, A. G. Taggart, Jess R. Chandler, J. F. Caroline, R. C. Clarke, C. W. Tudor, Seth Lewis, A. E. Pinkston, H. R. Anderson, B. T. Biggs, Ira Jackson, E. F. Wakefield, J. J. Pope, L. O. Brown, F. W. Wilcox, A. G. Barefield, H. A. Schrock, Alex Davis, Wylie Cole, J. A. Brady, A. W. Hosie and E. Wadley.

“And it appearing to the court that the foregoing twenty-nine persons were selected by the jury commissioners at this term of this court and found qualified to serve as petit jurors, the said twenty-nine persons were duly sworn and empaneled as petit jurors for this special term of this court.”

The paper you show me is an order I made ordering summoned a special venire of thirty-six men, they having been selected in the manner provided by law. It was made on July 25. It reads:

“The State of Texas,

In the District Court of Beeves County,

vs.

Ho. 616.

Texas.

Leon Martinez.

The 25th day of July, A. D. 1911.

“On this day, in the above entitled and numbered cause, came on to be heard the motion of the State for a writ of special venire to issue in said cause, which having been duly heard and considered by the court, the same is granted, and it is considered and ordered by the court,, that the clerk of this court do forthwith issue to the sheriff of this county a writ of special venire commanding him to summon on the venire the Thirty-six’ persons whose names are set out in a list in the said writ, to appear before this court at nine o’clock, on the 28th day of July, A. D. 1911, at the courthouse of this, Beeves County, then and there to serve, if selected, as jurors in the trial of this cause; and it is further ordered by the court that said writ of special venire to be issued in obedience hereto shall be made returnable in this court on the 26th day of July, A. D. 1911, on or before 10 o’clock a. m.”

This is a copy of the indictment returned in court by the grand jury empaneled:

“In the name and by the authority of the State of Texas: The grand jurors, for the county of Eeeves, State aforesaid, duly organized as such at the special July 34 term, A. D. 1911, of the District Court of said county, upon their oaths present that Leon Martinez on or about the 33d day of July, A. D. one thousand nine hundred and eleven, and anterior to the presentment of this indictment, in the county of Eeeves and State of Texas, did then and there unlawfully with malice aforethought kill Emma Brown by shooting the said Emma Brown with a pistol and stabbing the said Emma Brown with a knife, against the peace and dignity of the State.

T. H. Beauchamp,

Eoreman of the Grand Jury.”

Endorsed as follows:

“No. 616. The State of Texas vs. Leon Martinez

Indictment

Offense: Murder.

Eiled 35th day of July, 1911.

H. N. McKellar, Clerk' of the District Court of Eeeves County,

Texas.”

Copies of the verdict of the jury and the judgment based thereon were introduced in evidence dated July 39, 1911. The motion of relator for a new trial was identified and offered in evidence, and reads as follows:

“The State of Texas,

In the District Court of Eeeves County,

vs.

No. 616.

Texas.

Leon Martinez.

Special July Term, A. D. 1911.

“Now comes the defendant in the above entitled and numbered cause and moves the court to set aside and hold for naught the judgment rendered in said cause against this defendant on the 39th day of Juty, A. D. 1911, for the following reasons, to wit:

“Eirst. Because the court erred in not charging the jury that the testimony of the stenographic notes to the effect that this defendant swore that he was seventeen years old in the trial of the Holmes case, should be considered by them as impeaching testimony only, as shown by defendant’s bill of exceptions number one.

“Second. Because the court erred in permitting the said stenographic notes to be used as evidence in the trial of said cause against this defendant, as shown by defendant’s bill of exceptions number two.

“Third. Because the court erred in sustaining the State’s exception to the marriage certificate offered in evidence by defendant, said certificate showing a marriage between the defendant’s father and mother, and the date of said marriage certificate, as set out in plaintiff’s bill of exceptions number four.

“Fourth. Because the court erred in permitting the State’s attorney to read a part of the written confession of defendant to the jury, and not requiring said State’s attorney to read the whole of said statement, said written statement being a confession made by defendant to the State’s officer, and introduced by the State against defendant as a written confession, as set out in defendant’s bill of excepions number five.

“Fifth. Because the court erred in permitting the written confession of defendant to be read to the jury in the trial of said cause, as shown by defendant’s bill of exceptions number six.

“Sixth. Because the verdict against this defendant is contrary to the evidence in said cause, in this: the competent testimony in said case pertaining to the age of this defendant was to the effect that he was under seventeen years of age at the time of the commission of the offense alleged in the indictment.

“Seventh. Because said verdict and judgment is contrary to the law, in that the testimony in said cause failed to show the defendant’s age to be seventeen years, as required by law.

“Eighth. Because the testimony against this defendant is insufficient in law to show that this defendant is guilty of murder in the first degree.

“Ninth. Because said verdict and judgment is contrary to the law and not warranted by the evidence.

“Wherefore, premises considered, defendant prays that said verdict and judgment be set aside and this defendant be granted a new trial.

George Estes,

J. W. Parker,

Attorneys for Defendant.”

Copies of the order overruling the motion for new trial, and sentence of the court were then introduced in evidence; and the charge of the court. The charge reads as follows:

“The State of Texas,

In the District Court of Beeves

vs.

No. 616.

County, Texas.

Leon Martinez.

“Gentlemen of the jury:

“In this ease the defendant, Leon Martinez, stands charged by indictment with the offense of the murder of Emma Brown, alleged in the indictment to have been committed by the defendant, Leon Martinez, in the county of Beeves and State of Texas, on or about the 22d day of July, A. D. 1911; to which charge the defendant has pleaded not guilty, and I give you in charge, as the law applicable to this case, the following:

“Every person of sound memory and discretion who shall unlawfully kill any reasonable creature in being, within the State, with malice aforethought, either expressed or implied, shall be deemed guilty of murder.

“Murder is 'distinguishable from every other. species of homicide by the absence of circumstances which reduce the offense to negligent homicide or manslaughter, or, which excuse or justify the homicide.

“Malice is a condition of the mind which shows a heart, regardless of social duty and fatally bent on mischief, the existence of which is inferred from the acts committed or words spoken.

“Malice, which is absolutely essential to constitute the offense of murder, is either express or implied.

“All murder committed with express malice is murder in the first degree.

“All murder committed with implied malice is murder in the second degree.

“The distinction between express malice and implied malice determines whether murder is of the first or second degree.-

“Express malice, which is absolutely essential to' constitute murder in the first degree, is where one, with sedate, deliberate mind and formed design, unlawfully kills another.

“When an unlawful killing is established, the condition of the mind of the party killing, at' the time, just before and just after the killing, is an important consideration in determining the grade of the homicide; and in determining whether murder has been committed with express malice or not the important questions for you to consider are: do the facts and circumstances in the case, at the time of the killing, and before and after that time, having connection with or relation to it, furnish satisfactory evidence of a sedate and deliberate mind on the part of the person killing, at the time he does the act? and do these facts and circumstances show a formed design to take the life of the person slain, or to inflict on him some serious bodily harm, which, in its necessary and probable consequences, may result in his death? or do the facts and circumstances in the case show such general reckless disregard of human life as necessarily includes the formed design against the life of the person slain? If they do, the killing, if it amounts to murder, will be upon express malice.

“In order to warrant a verdict of murder in the first degree, malice must be shown by the evidence to have existed, that is, you must be satisfied from the evidence, beyond a reasonable doubt, that the killing was a consummation of a previously formed design to take the life of the person billed, and that the design to kill was formed deliberately, with a sedate mind, that is, when the mind of the person killing was self-possessed and capable of contemplating the consequences of the act proposed to be done. There is, however, no definite space of time necessary to intervene between the formed design to kill and the actual killing; a single moment of time may be sufficient; all that is required is that the mind be cool and deliberate in forming its purpose, and that the design to kill is formed.

“If the evidence satisfies you, beyond a reasonable doubt, that the killing was the result of a previously formed design by the defendant to kill deceased, and that the design was formed when the mind was calm and sedate and capable of contemplating the consequences of the act proposed to be done by him, and such killing is further shown to be. unlawful and done with malice, then the homicide is murder in the first degree, and your verdict should be rendered accordingly.

“To warrant a conviction of murder in the first degree, you must be satisfied by the evidence, beyond a reasonable doubt, that the defendant, before the act, deliberately formed the design with a calm and sedate mind to kill the deceased; that he selected and used the weapon or instrument reasonably sufficient to accomplish the death by the mode and manner of its use. The act must not result from a mere sudden, rash and immediate design, springing from an inconsiderate impulse, passion or excitement, however unjustifiable and unwarrantable it may be.

“Mow, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, Leon Martinez, did, as charged in the indictment, with express malice aforethought, with a pistol and knife, with a sedate and deliberate mind and formed design to kill, did unlawfully shoot and stab and thereby kill the said Emma Brown, you will find him guilty of murder in the first degree, and so state in your verdict, affixing the penalty therefor.

“The punishment for murder in the first degree shall be by death or by confinement in the State penitentiary for life, as you may determine and state in your verdict.

“The next lower grade of culpable homicide than murder in the first degree is murder in the second degree. Malice is also a necessary ingredient to murder in the second degree. The distinguishing feature, however, so far as the element of malice is concerned, is: that in murder in the first degree malice must be proved to the satisfaction of the jury, beyond a reasonable doubt, as an existing fact, while in murder in the second degree malice will • be implied from the fact of an unlawful killing.

“Implied malice is that which the law infers from or imputes to certain acts, however suddenly done; thus: when the fact of an unlawful killing is established and the facts do not establish express malice, beyond a reasonable doubt, nor tend to mitigate, excuse or justify the act, then the law implies malice, and the murder is in the second degree; and the law does not further define murder in the second degree than if the killing is shown to be unlawful, and there is nothing in evidence on the one hand showing express malice, and on the other hand there is nothing in evidence that will reduce the killing below the grade of murder, then the law implies malice, and the homicide is murder in the second degree.

“If you find and believe from' the evidence, beyond a reasonable • doubt, that the defendant, with a pistol and knife, in a sudden transport of passion, aroused without adequate cause, with intent to kill, did shoot and stab and thereby kill Emma Brown, as charged in the indictment, you will find him guilty of murder in the second degree and assess his punishment at confinement in the State penitentiary for any period that you may determine and state in your verdict, provided it be for not less than five years.

“A person for an offense committed before he arrived at the age of seventeen years shall in no case be punished with death, and if you find from the evidence in this case that the defendant was under the age of seventeen years at the date of the killing you will not assess his punishment at death, even though you find him guilty of murder in the first degree, as hereinbefore defined.

“The burden of proof is on the defendant to establish the fact that he was under seventeen years of age at the date of the killing.

“The defendant can not be compelled to testify in the case. He has a right to testify in his own behalf, but if he chooses not to do so, his action in not testifying is not subject to criticism by you, and you will not discuss nor even refer to the fact that defendant did not testify in the case.

“If you find the defendant guilty of murder, but have a reasonable doubt as to the degree of murder, you will resolve the doubt in favor of the defendant and find him guilty of murder in the second degree.

“The defendant is presumed to be innocent until his guilt is established, by legal evidence, beyond a reasonable doubt, and if you have a reasonable doubt as to the defendant’s guilt you will acquit him and say by your verdict not guilty.

“You are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given to the testimony, but you must receive the law from the court, as it is herein given you, and be governed thereby.

S. J. Isaacks,

Judge Seventieth Judicial District.

“Endorsed as follows:

“Ho. 616. The State of Texas vs. Leon Martinez.

CHARGE.

“Eiled in District Court this 29th day of July, A. D. 1911.

H. H. McKellar,

Clerk District Court Reeves County, Texas.”

Judge Isaacks, the witness, continuing, testified: “All of these orders were made and entered of record on the dates named. The charge was not copied in the minutes, but was filed by the clerk. When the motion for new trial was presented and overruled the defendant was present. Ho notice of appeal was given. The defendant was present at all times when anything transpired. Judge Parker was present when the motion for new trial was overruled. He presented the motion for a new trial, and when I overruled the motion I asked him if he was going to give notice of appeal. He said: ‘We are not going to give notice of appeal.’ That after the trial he thought the court had committed error in one instance, but after careful consideration they had decided there was no error. That was in reference to the admission of certain testimony, and he said: ‘We are convinced there was no error in the trial of the case, and we are not going to appeal it.’ The defendant did not say one word about appealing the case. Before passing sentence I asked him if he had any, statement to make why sentence should not be pronounced against him. He said that he had not, except as to his age; and I think he said, I am not old enough to be hanged. He never at any time mentioned the Court of Criminal Appeals. He never at any time said anything about appealing the case. If he had made any intimation whatever that he wanted to appeal the case, I should myself have entered a notice of appeal without any action on the part of him or his attorneys. When I asked Judge Parker if he wanted to give notice of appeal he went over and talked to the defendant, and then notified me that no appeal would be taken. Judge Parker is ex-district attorney of the 43d judicial district, and had been practicing law twenty or twenty-five years. The attorneys requested consultation with defendant, and it was always granted. Two requests were made in open court, and they went off in a room adjoining the courtroom and consulted with him.”

The evidence adduced on the trial of the case in the District Court was introduced in evidence in this case. It is as follows:

“Be it remembered, that the following is a statement of the facts proved upon the trial of the cause before numbered and entitled:

Doctor J. H. Wolveríon, a witness for the State, having been duly sworn, testified:

Direct examination: My name is J. H. Wolverton. I live at Balmorhea. I am a physician. I have been a physician six years. My experience has been, hospital and general practice, for that length of time.

I have had occasion to examine gunshot wounds and other wounds. I have had occasion to examine the general run of that; I have examined gunshot wounds and stab wounds.

I knew Miss Emma Brown. I had occasion along about July 22 or 23 to examine the body of Miss Emma Brown. Sunday morning, about eleven o’clock; I forget about what day it was; 22d or 23 d, along there, of this year.

I found that Miss Brown had six stab wounds in the front part of her chest. I found one stab wound in the median line just above the sternum, in this position here (indicating) and I found two stab wounds about half an inch apart, on the left of the median line of the sternum, three and a half inches of the breast bone, in this positon over here (indicating) about half an inch apart. Then there was two stab wounds in front on the left side just above the breast, two inches below the clavicle; that was on the left side, about this position (indicating). Then there was one stab wound on the right side, one inch from the median line of the back; that would be right about there (indicating). These wounds in front, four of them punctured the lung, and the* one behind punctured the lung. Then there was one bullet wound. There were six wounds in front and one behind. From my experience as a physician, these- wounds were made with some kind of a sharp instrument; I imagine a knife. There was one bullet wound, in the lumbar region, three and a half inches from the line of. the back bone, ranging from the superficial structure, coming out of the abdomen on the left side, three and a half inches from the median line and five inches from the umbillicus. The ball entered about this position here (indicating), came out around here (indicating). I do not think it entered the abdomen. It “followed the superficial structure, and it would not have caused death.

From my experience as a physician, the natural effect of these wounds on the body of Miss Brown was: they would have caused death. 'Wlhen I got to the body life had been extinct for some time; I could not say how long. I waited upon the body down where she was found, two miles east of Saragosa.

Cross-examination: Any one of the four of the six knife wounds in front would have been fatal, and the one in the back would have been fatal. . The bullet wound was not fatal. That was a flesh wound. It would be problematical as to whether or not the bullet wound, if inflicted first, would impair immediately the strength of the deceased party; I believe it- would, though, for a woman; it might not for a man; for the time being I think it would. It would probably impair their physical strength very materially. It is hard to»- say,. exactly, but I have seen people come around with very little discomfort with a larger wound; but sometimes a woman faints; it depends upon the person.

I expect I have known the deceased something like five or six months. I could not tell you with any certainty about what her age was; it is mere guesswork on my part. I would say she was about anywhere between twenty-six and twenty-nine. She was a single lady. She was about five feet four or five inches in height. I would imagine,- five feet two to five inches. I would think her weight to have been between 135 and 145 pounds. Yes, she had the appearance of a stout, strong, vigorous woman; she was .pretty well built. She was more on the fleshy order. When I first saw the body it was about two miles east of Saragosa, on the prairie, there. When I saw her I think it was about half past ten or eleven, on Sunday morning. I went out there with Mr. Stuckler. Yes, there were other parties there when I got there; quite a few there. I think the body was lying on the ground as it was found. They said they had not moved it. She was lying prone; lying clear on her back; head and feet all touching the ground, straight out. I remember the arms were ■ about in this position (indicating); may have been turned a little bit, not crossed, not upon the breast, but lying down. I could not say positively whether they were by the side, but I do not think they were crossed. I know the fingers were drawn, because I had to take off her gloves. The limbs were straight out; elose^together. The corpse looked to me as though it might have been straightened out, but of course I do not know.

Pink Harbert, a witness for the State, having been duly sworn, testified:

Direct examination: My name is Pink Harbert. I live about two and a half miles below Saragosa. My business is farming. I am deputy sheriff. I knew Miss Emma Brown. I had occasion, about the 22d or 23d of July, to see her body.

Mr. Bobbins came down and told me he had found Mrs. Copper’s horse and buggy up at the gate, and asked me to go with him to look for her; so he went back to get the buggy, and I went up the road, and I found Miss Brown a little west from the road, dead. The body was lying on her back, her feet crossed. I went then and met Mr. Bobbins and Mr. Baker, and told them I had found her, and came to Mr. Honaker’s and phoned to a justice of the peace. She was in the same position when the doctor came there. I did not, the first time I was there, look around the body, around about the country, to see if there was anything there. I did that afterwards. I did not find anything. I did not find any such thing as a stick, or anything around there.

Cross-examination: Ho, that was not near the Pecos to Saragosa road. I- suppose it would be called the Barillo and Saragosa road; it was east of Saragosa. I judge it was about three miles from Saragosa. I suppose it was a mile and a half from the nearest house. The body was on the left-hand side of the road, going to Saragosa. I suppose it was about eight o’clock, or eight-thirty, when I found her. The body could be seen from the road. There was no sign around the corpse on the ground that attracted my attention in connection with any struggle on the ground. The second time I went to look I found nothing on the ground. I judge it was about half an hour between the time I first went and the second time. I said the feet was crossed. The body was lying on its hack. The hands, seems to me, was something like that (indicating). They were not laid upon the breast. I do not remember whether or not the body was stiff when I first found it. I left the body remaining just as I found it. I did not notice any tracks of any person, of any character, around where she was found. The ground was dry at that place at that time. There was grass on the ground. At some places tracks would show, if made there, at others they would not. At that particular place there would be places where tracks would show and places where they would not. I did not notice for tracks the first time I was there. I noticed for tracks the second time. I did not find any the second time. I did not find any instrument of any character about the body, knife or pistol or anything of that character. Yes, I tried to track the deceased where she was, where she came from the road she went in going out there. I "found that by her buggy tracks. I did not find any foot tracks. I did not find anything that would indicate how she got out there to where she was then found. I found some buggy tracks. They were all around the body. There were horse tracks around there. I suppose the corpse was lying about three feet from the buggy track. The buggy tracks was on both sides of her; all around.

I judge she was somewhere between twenty-five and thirty -years old. I suppose she was five and a half feet high. I suppose she would weigh 150 or 140. She was tolerably fleshy; not so very stout. She was considered a stout woman, distinguished from a weakly one. She was a single lady. She lived over in the U pasture out there. I guess she lived about six miles from where she was at. She lived about nine or ten miles from Saragosa.

I know the defendant. I do not think I had ever seen the defendant and the deceased in company with each other at any time. I do not remember to. have seen them. I believe the defendant lived in New Saragosa at that time.

Redirect examination: I examined the buggy afterwards. I found three bullet holes in -it. From the buggy tracks it looked to me like the horse and buggy had been running and circling. I judge the body ,was about three feet from the buggy track.

Recross examination: One of those holes was in the bed of the buggy, right behind, one in the side of the buggy and one in the back of the seat. From the way the shots went in the buggy I think whoever did it was kinder behind the buggy and to one side. One shot was fired behind the buggy, and one in the side, and one in the buggy,- in front. I do not mean the front end of the buggy; I mean in the side of the buggy in front of the seat. I could not tell the caliber of the pistol that was fired; it was a very small bullet. The size of the bullet hole would indicate about a 22 or 25, something-like that.

In answer to questions by the court: This buggy had no top. The country was flat. There was very few, little brush; where she was there was none at all. I suppose her body was twenty-five or

C. Brown, a witness for the State, having been duly sworn, testified: thirty steps from the road. I think'it was about three miles from Saragosa.

Direct examination: My name is C. Brown. I am sheriff. I was not acquainted with Miss Emma Brown. I had seen her two or three times. I have seen the defendant several times.

I had occasion to arrest the defendant, last Sunday, on the 23d. I was notified that there was a murder committed near Saragosa. I went out there and after I got there they suggested to me that he was the man that did the deed, and me and Mr. Stuckler went up and arrested him. We found him in Saragosa when we arrested him; the old town; but before that I seen him down at Honaker’s place; that is, during the day of Sunday. That was where the body of Miss Brown had been taken. I could not exactly say what he was doing at Honaker’s when I saw him. He was standing around, as well as I remember; there was a big crowd there, and I never paid no particular attention to him.

The body had been moved when I got there. I went out to where it had been, but they never showed me any particular place. We went out to compare horse tracks; the little dun mare they claimed he rode the day before, which he acknowledged he did; the tracks compared exactly, and the ones that was following the buggy. They just showed me in places where it was, where it was clear, where no other tracks had went over it. I would take this mare right hy the side of that track, three or four different places. I took the mare and compared the tracks. I did not make any search for instruments where the party was supposed to have been killed. I took a pistol off the boy, when I found him at Old Saragosa. It was a 25 automatic pistol. I have that with me. (Witness produces pistol.) That is the pistol I taken out of his pocket.

Cross-examination: I do not know that he was riding a dun mare the day before this, of my own personal knowledge. The tracks I found corresponded with the tracks of a mare he was supposed to ride the day before; we had her on the ground there, leading her. Her left forefoot was split right square off, so it left an open space on the foot, left that mark that you could identify the track. That showed in the track. I suppose about an inch of her foot, a little gap, just split up and broke off, that did not touch the ground. Every time she put her foot down the other hoof was so much longer. I found lots of tracks, seen lots of tracks; the tracks we compared was the tracks they showed me following the buggy, and claimed they found them tracks following the buggy when they first went down-there, before there was any other tracks there. I made an examination myself to see whether or not this track with this peculiarity had been following the buggy; I found it. I could not tell whether the track was in front of the buggy there or not. There was nothing but buggy tracks and horse tracks there. Erom what I could see they was going in all directions while they was there (the horses). Yes, if they were going in one direction and the peculiar track had been in front of it I could tell that, but maybe they would go this way forty feet and then back that way; you couldn’t tell which was in front and behind. It would be an impossibility for a man to tell whether he had ridden a horse behind the buggy, or in front of it, from the tracks. A man seeing a track could not tell whether the track was made prior to the one made by the buggy or not. Where they were dodging back and forwards so much, I never paid much attention to that. They taken me a little further back where they was running more straight; they was not runing straight very far at the time—to compare the tracks where they had not been tromped out so much.

E. L. Baker, a witness for the State, having been duly sworn, testified :

Direct examination: My name is E. L. Baker. I live at Saragosa. I have lived out there six years. I knew Miss Emma Brown. I had occasion about the 22d or 23d of July to see the body of Miss Emma Brown. She was about a quarter south of Pink Harbert’s house. She was a little over three miles east, about three miles from Saragosa. I was not with Pink Harbert when he found her. I went to the body directly after Pink was there; me and Mr. Bobbins went together. I stayed there where the body was until the doctor came. I made an examination around on the ground about the body. I did not find any instruments of any kind there. I followed the tracks out all the way, around from the time she quit the road until I came to the body; buggy tracks. I did not find her tracks at any place. I could find the buggy tracks, but could not find any of her tracks. I did not find any stick in that locality; no instrument of any kind.

W. P. Brady, a witness for the State, having been duly sworn, testified:

Direct examination: I want to state to the jury that on last Monday, the 24, I believe it was 24th of July, I found out that the defendant, Leon Martinez, was in jail here. I went over to the jail to see if he wanted to make a statement He made to me a written statement, made it voluntarily. I duly warned him.

The State here introduced in evidence the written statement above mentioned by the witness W. P. Brady, said written statement being in words, letters and figures, as follows, to wit:

Pecos, Texas, July 24, 1911.

I, Leon Martinez, after having been duly warned by Will P. Brady that I do not have to make any statement at all, and that any statement which I do make may be used against me on the trial for the offense concerning which this statement is made, I voluntarily make this statement to Will P. Brady:

On July 22, 1911, about three miles from Saragosa, I met Miss Brown, who was riding in a buggy. I asked her to let me do what she had promised. She had promised to let me fuck her. When I asked her on the road on July 22, she said-1 would have to go somewhere else. I told her I just had to do something. She said, 'What do you mean, you son-of-a-bitch ? I am' going to have you arrested/ I told her she did not need to have me arrested, all I wanted was for her to do what she had promised to do. She said she would kill me, and put her hand on her hip. Then I commenced shooting and shot four times with a 25-caliber automatic pistol. Her horse ran away, and when I headed the horse she stopped and got out of the buggy. When I got off my horse the girl ran. She had a stick in her hand. I then stabbed her in the back with my knife. When she turned around she hit me with her fist and I stabbed her four or five times in the breast. She never hit me with the stick. I got on my horse and loped away to Saragosa. I did not tell anyone until I was arrested. She was standing up when I left her. After eating supper at home I went to Crenshaw’s store and worked. On the morning of July 23, 1911, I met John Oates and Eloyd Crenshaw in a buggy. Eloyd told me that Miss Brown had been found dead; that she had been shot. I afterwards told Jim Mayfield about her being shot. Then I ate dinner and went to Old Saragosa, and from there I went to Mr. Honaker’s place, where "the body of Miss Brown had been brought. I looked through window,- hut could not see the body. I stayed at Honaker’s almost an hour and then with Henry Everett I went to a watermelon patch and ate a melon. I was coming out toward Old Saragosa when the officers arrested me. I had the gun that I did the shooting with, but the knife was at home in my other pants. Miss Brown did not pull any pistol at any time. When I told the officers about having killed Miss Brown I did not tell them about her threatening to kill me, but I did tell Mr. Stuckler last night. This all happened in Eeeves County, State of Texas. I was riding a dun mare, unshod—a little horse. The mare belonged to Crenshaw & Co. I killed Miss Brown about four o’clock in the afternoon. I had talked to Miss Brown at the store where I worked, on the morning of July 22, and that was when she told me I could fuck her.

(Signed) Leon Martinez.

Pink Harbert, a witness for the State, recalled, testified:

Direct examination: I found the body, and this occurrence I have testified about was in Eeeves County, State of Texas.

The State Bests.

The defendant introduced in evidence the following portion of the statement testified to by the State witness W. P. Brady, as having been made to him by the defendant, said portion of said statement not being offered in evidence by the State:

I am sixteen years old, was sixteen on June 10, 1911.

L. C. Martinez, a witness for defendant, having been duly sworn, testified, through an interpreter:

Direct examination: My "name is L. C. Martinez. I am thirty-nine years old. I am married. I had nine children; five are living. My wife is living. My wife is in Toyah now; she will be here this evening. I have lived in Beeves County, will be three years the 8th of October. I lived in El Paso prior to coming to Beeves County. I came to the United States the 3d of April, 1906. Before I came to the United States I lived in Durango, Mexico.

The defendant is my son. My boy was born the 10th of June, 1896.- He ds now fifteen years and some months. When he was born I was living in Gallege Baneh, county' of Inde, Mexico. I had another son older than him; he died. This is my oldest son living. I was married to his mother the 22d of April, 1893. I have the marriage certificate with me. (Witness produces paper.) That is it. I do not know exactly the ages of all of my children, but more or less all of them. My child next to this defendant was.a girl; it died. The next child died. It was a girl. The next child is living, after that. That one is twelve years old.

Cross-examination: I lived at Saragosa last week. Last Christmas I was in Pera. I was in Saragosa in February of this year, and in March and April. A part of the time I was in Toyah this month, and part of the time in Saragosa. Yes, I stated my boy was fifteen years old last month; I repeat it again. I made a supper for my boy (on his birthday), on the 11th of April, a party, because that is the saint’s day, according to his name. That is San Leon’s day. That is April 11. We always celebrate the saint’s day, not in his birthday. He was going on fifteen years in April when we celebrated that.

I do not know Pat Moran. When I see him I might know him. I. do not remember his name. I know Pat Moran that worked in the printing office; I do not know his name, but I know him personally. I did not tell him over a year ago that that boy was sixteen years of age at that time. I do not remember when this boy was baptized. I have not got any date. I have a child two and a half years old that is not baptized yet. He was very small when baptized, but I do not remember which month it was.

My boy’s name, this defendant, is Leon C. Martinez. The other boy’s name, next to him, was Manuel. Manuel is going on twelve years old. I said yesterday I did not know for sure. I did not testify positively yesterday that he was twelve years old. My boy’s name that died was Manuel also. It is the custom in Old Mexico to register each child when it is born. They did not issue me .a certificate showing that the child was born; if anybody asks for it they do. I have not got a certificate as to when this defendant was born.

Manuel Mata, a witness for the defendant, having been duly sworn, testified :

Direct examination: My name is Manuel Mata. I live at Saragosa. I have lived at Saragosa about—over twenty years, twenty-five, something like that. I know the defendant. I have been acquainted with him over three years, close to foqr, I think. I first became acquainted with him at Toyah, Texas. He was real small then; I can not say just how big he was, but he was very small. He was looking to me like he had been sick and weak, and like he had not been doing much work, and seems to me then it was that he had not developed much. I do not know what his age was at that time. I can not say how old he was, because I do not know his age. A fellow can not judge a fellow’s age by the looks. I do not think I could hardly answer that question.

Cross-examination: I do not remember that I told parties last week that he was eighteen years old now. I do not remember that I told parties out at Saragosa that he was eighteen years of age now, and I thought that was about how old he was. I might have done it, in. talking that way, but I did not mean to say I knew his age. That might have been my impression as to what he rvas at the present time. I do not remember if I told parties at Saragosa that he was eighteen years old, when they asked me. He worked for me. I was postmaster at the time. He was not assistant postmaster; he was clerk for me. I did not swear him in. I do not know whether, the law tells me to swear anybody in that attends to mail, but I never did swear him in; he was working in the store for me. I do not remember it if I told anybody since this man was arrested that he was eighteen years old or that I thought he was that old; I might have told a fellow at the time it was my impression he was that old; it might have been by impression. I do not remember whether I told parties that out there; I might have said he was eighteen, but it is like you would, the same way. Yes, I attended his birthday party.

E. Sidra Martinez, a witness for defendant, having been duly sworn, testified:

Direct examination: I am the wife of L. C. Martinez. I am mother of Leon Martinez. The defendant is fifteen years old, going on sixteen. He was born in 1896, the 10th of June. I have had nine children since my marriage with my husband. I have five living.

Cross-examination: I came to Pecos in yesterday’s train, the last train; when it went out of Toyah it was 3:55. When I came here a little later they told me the court was closed. I did not see the time, but I came just when the train leaves there. People told me the court was closed. When they telephoned me to Toyah to come up here, and when I got down here they told me the court was closed. Ho, no officer of the court told me that; nobody told me. My husband did not know I was there, but when he came to me he told me the court was closed. I was with my husband last night. My oldest child besides this one is not living; he would be sixteen years, but he is dead. The child that died, the first child, was named Manuel. My husband has been married just with me; the first time; we are married a legitimate marriage. My boy, the next one to this one, that is living, is eleven years old. He was born the 18th day of May, 1900.

Bedirect examination: I never saw that man before. I do not remember if I have seen him; I do not remember. I do not remember of seeing you before.

Defendant Bests.

S. H. Crenshaw, a witness for the State, having been duly sworn, testified:

Direct examination: My name is S. H. Crenshaw. I live at Saragosa. I know the defendant. I am in the mercantile business at Saragosa. The defendant worked for me. He was working for me in June. He has been working for me since the 8th day of February. I had an occasion since that time to receive an invitation to his birthday party. I received it in April. I know L. C. -Martinez, the father of this boy. I know his handwriting; I am familiar with it. That invitation was in his handwriting. I have made a search for that invitation. I looked the house over the day before I came down here. I have not had search made for - it since then. I made diligent search for it. My wife is away from home. I do not know where that invitation is now. I might have thrown it away or destroyed it, like any other letter. I was not able to find it. It was in a blue envelope. The best of my knowledge it was stated on it, eighteen years of age.

Cross-examination: I said to the best of my knowledge, and the best of my recollection. That was somewheres between the middle of April and the 1st of May. of this year, 1911. To the best of my knowledge it said eighteen years old. Yes, others saw that invitation; M. C. Luckey saw it, got one; he works in our store. It was written in Spanish. I can not read Spanish. I know it was eighteen because I got Leon to read it; I believe it was Leon. He was present when I received it. Yes, I got him to read the entire invitation; I think it was him; I got someone to read it. To the best of my knowledge whoever read it read it eighteen. I am-not certain that it was the defendant that read it; I could not say for sure, hut I think it was, because he is right there in the.store all the time, and he is the only one that could read Spanish in the store. There was several around could read it, but he was the only one in the store at present.

Bedirect examination: I gave the defendant a present on that birthday, and talked to him about his birthday.

Pat Moran, a witness for tlie State, having been duly sworn, testified :

Direct examination: My name is Pat Moran. I live at Pecos. I lived at Toyah before I came to Pecos. I lived at Toyah about eleven years, a little over. While at Toyah my business was a little bit of everything. The last couple of years I was running a newspaper.

I know L. C. Martinez, Sr. I know this defendant. He never worked for me. He worked in my shop, but he was doing his own work. I had occasion to have a conversation with the defendant’s father in regard to the defendant’s age. L. C. Martinez, the father of this boy, told me that he was sixteen years of age. That was over a year ago, but I could not-

The Court: The testimony will be limited for the purpose of impeachment.

Cross-examination: I speak Spanish very little. Old man Martinez does not speak English, but that was in Spanish. I can ask how old a person is, and can understand, when he tells me. Yes, I asked how old he was; I askéd him (witness here spoke in Spanish) . I will state . positively that that was over a year ago. I asked the old man the age of the boy because, as printers, there was a sort of mutual interest between us. I would visit their place. The boy was a bright boy, and the question came into my mind to ask the o(d man how old the boy was, and he stated, positively, sixteen, in Spanish.

Bedirect examination: I do not understand Spanish enough to read the paper his father was running in Toyah at that time, but the name of it was the Evolución en Sociale.

Lester C. Majors, a witness for the State, having been duly sworn, testified:

Direct examination: My name is Lester C. Majors. I am official shorthand reporter for the Seventieth Judicial District of Texas. I held the same position in 1911.

I had occasion, in January of 1911, to take the stenographic notes of a case at Barstow, the State of Texas vs. P. K. Holmes. The witness L. C. Martinez, who is now the defendant in this case, testified in that case. (Witness is handed statement of facts.) This is the- statement of facts in the Holmes case. I made that statement of facts. It is correct. (Witness turned to testimony of L. C. Martinez, in said statement of facts in the Holmes case.) In that testimony he said: I am seventeen years old.

Cross-examination: The question, to which that answer was made, is not in the record, but I can give you the question with practical certainty.

In answer to questions by the court: The record is made in narrative form, Tt is not made in question-and-answeT form.

Lee Harbert, a witness for the State, having been duly sworn, testified as follows:

Direct examination: My name is Lee Harbert. I live at Saragosa. I know Manuel Mata, a merchant at Saragosa. Yes, I had a conversation with him since this occurrence about the-he was, if he knew. He said he was between eighteen and nineteen.

Cross-examination: I asked him if he knew how old Leon was, and he said between eighteen and nineteen. I just asked him how old he was, and he - said between eighteen and nineteen. He did not tell me how he knew it, and I did not ask him. He just answered my question; that is all.

The Court: Gentlemen of the jury, you will not consider the evidence of Pat Moran and Lee Harbert for any purpose other than impeaching the witnesses who had testified prior thereto.

All Parties Close.

The State of Texas

vs.

Leon Martinez.

Ho. 616.

I, Lester C. Majors, official shorthand reporter for the Seventieth Judicial District of Texas, hereby certify that the foregoing twenty-three (23) pages contain a full, true and correct statement of all the facts proved upon the trial of the above numbered and entitled cause.

Witness my hand at Midland, Texas, this the 23d day of August, A. D. 1911.

Lester C. Majors,

Official Shorthand Reporter,

Seventieth Judicial District of Texas.”

Judge Isaacks, then continuing, testified: “You asked me if in connection with the district attorney I personally examined the minutes to see that the orders were correctly entered. . I will say this being a called term of the. District Court, I took it upon myself to dictate the orders, and then examined the record after the clerk had recorded them to see that it was .properly done, and they were all entered at the time indicated and during the term of coui;t. In answer to the question, were there any requests or motions by the attorneys for defendant or defendant himself that do not appear of record? I will say that when the case was called for trial, the State announced ready, and Mr. Estes made a verbal statement that he wanted to have present the mother of defendant to testify as to his age. I learned that defendant’s mother lived at Toyah, only twenty miles distant, and assured defendant’s' counsel her attendance would be secured, and she was present and testified on the trial of the case. There was no motion for continuance, or other motion for a postponement of the case; no application for a change of venne filed, and there was no intimation made to me by either of the attorneys for the defendant, by the defendant, or any friend of the defendant, or suggestion made that defendant could 'not get a fair and impartial trial. There are two regular terms of the District Court held in Beeves County annually—one in April and one in November. I-learned of the death of Miss Brown on Sunday night, and I went that night to Pecos, and arrived there Monday morning.

“The first order made was the order convening the special term of the District Court of Beeves County. It was made on Monday, July 24. The' next order was made after court convened, appointing a jury commission. I just selected the names of three men that I knew to be competent. I dictated all the orders and did so because it was a-special session of court and I wanted to see that they were properly entered. I have held the office of district judge for three years, and this is the only time I have convened a special term of court. My reason for convening a special term of the court was because a murder had been committed, and I deemed it wise to investigate and find the murderer, and have him punished. There was no suggestion made to me by anyone that unless a trial was had immediately that relator would be mobbed. The district attorney is the person who notified me that this crime had been committed. Mr. Johnson, the proprietor of the hotel at which I stopped, said the people on the creek, that is the term used expressive of the neighborhood in which the crime was committed—when they first heard of-it, were wrought up and he was afraid the prisoner, whom the sheriff had in custody, was going to be violently dealt with for awhile, but that the excitement had subsided and there was no danger of mob violence. I do not remember discussing it with anyone else except Mr. Brady, the district attorney, and probably Mr. Cowan. No, I did not say several spoke to me about it. No one else spoke to me about any probable mob violence, past, present or future, except these three men, and I do not remember that Mr. Cowan did. I heard nothing of a mob on the day the trial was concluded. I left Pecos on the three o’clock train Sunday, and relator left on the same train I did. I ordered the sheriff of Beeves County to deliver him to the sheriff of Midland County because the jail at Pecos was in an unsafe condition, from the standpoint of probable escape therefrom. The new jail was not completed. No one has escaped from the Pecos jail. I absolutely had no other reason for ordering him taken to the Midland County jail. I had not the slightest idea that he might be lynched if he remained there. I might say that I considered there was a possibility of him being lynched, but the unsafety of the jail was the moving cause. I know the majority of people in Beeves County. I could not call their names, but know their faces. I have held six terms of court in Beeves County during the past three years, and with one exception I have never seen as many men in attendance on a trial in that county. At one other trial there was a larger number of men. I do not think there were many from any section other than the community where the offense was committed. There was quite a number from that community. The balance were Pecos people, and those who happened to be there from adjoining towns. In answer to the question: ‘Those places compose about nine-tenths of the population?’ he says: T think not. Toyah is quite a little place; Balmorhea is quite a little place, and the communities up the Santa Pe Bailroad. Beeves County is a large county, possibly nearly a hundred miles across one way. In addition to what' I said about Judge Parker’s legal ability, Mr. Estes has the reputation of being a good criminal lawyer. They made no question about the venire of jurymen, and did not exhaust all their challenges. I appointed Judge Parker to defend the relator as soon as the indictment was returned into court, and he was present when the special venire was drawn. The attorneys tested the qualifications of the jurors extensively, and there was no mob present in town or elsewhere during the trial, nor did I hear of any indication of a mob. I was around town after the trial and before the adjournment of court, and I heard no expressions of violence to the defendant or any other person. The only thing I heard was what Judge Parker said to me. After I had overruled the motion for new trial, and Judge Parker had said there was no error in the case, and ‘I am not going to give notice of appeal,’ he came up to the desk and had a conversation with me, and said he wanted me as his judge to understand that what those people had said to him had nothing whatever to do with his failure to give notice of appeal in the case. I asked what that was, and he said: ‘Some folks met us down there on the street a short while ago and asked us not to appeal the case, and I want you to understand as my judge that fact had nothing whatever to do with my not giving notice of appeal.’ He did not say any threats had been made towards him, the defendant or anyone else. The State exhausted seven or eight challenges while the defendant exhausted thirteen in the selection of the jury.”

Writs of commitment were introduced authorizing the sheriff to hold the relator under the indictment and sentence herein introduced; also the proclamation of the Governor granting a reprieve until the 30th day of September, 1911, and ordering him to be delivered to the sheriff of Taylor County to be by him kept until that date.

W. M. Beverly testified that he is sheriff of Midland County, and served relator with a copy of the indictment on July 25, 1911, and served relator with a copy of the special venire drawn on July 26.

George Estes testified he was an attorney at law, and of counsel for relator in the trial of the case in Beeves County. That he was employed to defend relator on Thursday, July 27, and the trial was begun on Friday, July 28, “I went to Pecos and conferred with Judge Parker, also counsel for defendant. We asked permission of the court to talk to defendant, and it was granted. He placed no limitations on us. We talked to the defendant. There were two rangers present. We went into the trial Friday morning, and after the jury brought in a verdict we were granted time by Judge Isaacks to prepare a motion for new trial. I can not name the length of time. Mr. Parker and I dictated the motion to a stenographer, and we went down town where we met the district attorney, Mr. Bradjq and asked for Judge Isaacks. He told us the judge was getting a shave, when we informed him that as soon as the stenographer had transcribed the motion for a new trial we would be ready to present it. He said he would inform the judge, and we started back to the courthouse. When we got nearly back to the courthouse someone holloed at us, and I turned around and saw a great many people coming rapidly-—-perhaps as many as fifty. They came up. Parker, the sheriff and I were standing there, the sheriff back to my left. Mr. Johnson seemed to be spokesman, and he was very much excited and out of breath, and he told us we must not appeal the case; if we did they were going to hang the defendant that night, and said they could hang three as well as one, or two as easy as one. And then Mr. Hosie got up on a box and made a speech and said they would not permit any appeal. I knew Mr. F. W. Johnson, Mr. Hosie, Mr. Landrum, and Mr. Collier, but did not know any of the others. In answer to the question: ‘Any of the jurors?’ the witness replied: ‘There might have been one.’ He told Judge Parker he would not permit any appeal, because Judge Parker had said in his argument to the jury he would be satisfied with any verdict that they might render. Judge Parker attempted to argue with them, and asked them if they did not think the quesion of law as to the trial ought to be settled by the Court of Criminal Appeals, and they said no. A gentleman from the neighborhood of the homicide, a large man, said, T want to know and must know right now whether this case is going to be appealed or not. We have our train and wagons to go home, but we are not going to leave until we know what is going to be done,’ and finally Judge Parker said' we will comply with your request, and I went to the hotel and stayed there. I was afraid to return to the courthouse. I did not give any notice of appeal. We took some bills of exception. We offered the marriage certificate of the father and mother of the defendant, which was ruled out and we excepted. The State introduced only a part of the confession of defendant, and we objected because the State did not offer all of it, but the part the State did not introduce, we offered it and were permitted to introduce it. We also objected to the stenographer being permitted to testify what the defendant testified as to his age at Barstow, but we did not write up any of the bills of exception. I did not do so because I was afraid, and left on the first train, I have lived at 'Pecos and at one time was county attorney of that county, and later district attorney of that district. I say thát I was afraid of violence and that was the reason we did not give notice of appeal, and see that it was entered of record. I stopped at the same hotel at whieh Judge Isaacks stopped, but I do not remember seeing him but once that night. I did not say anything to 'Judge Isaacks about the matter, and made no effort to see Judge Isaacks and tell him about these threats. I never made any protest to the judge or district attorney.. I never spoke to either of them about desiring to appeal the case. I do not know .what time court adjourned. About six o’clock I went over to the depot and saw Judge Isaacks there, but did not say anything to him. In answer to the' question: ‘When you came down from trying the ease, did anyone make any threats against you?’ he answered, T met A. W. Hudson, a lawyer, and he told me I had better be careful how I conducted the case or we would get the defendant hung and they would not stop at him.’ There was. no evidence of the people in the courthouse acting otherwise than people always act—they went up there and sat there and listened. I did not ask for any additional time to prepare the case for trial. I made a request that we postpone the trial to get the mother of defendant, and we secured her attendance on the trial. Judge Isaacks did not do or say a thing at any time during the trial when I was present that would justify me in thinking it would do no good to speak to him about any matter affecting my client. Wre tested the qualifications of the jury very thoroughly and did not exhaust all of our challenges. I did not see anyone with any arms besides the rangers. I did not try to change the venue. I talked to people with a view of finding out, and did not think it any use to try, besides I left that to Judge Parker, a man who' ought to know. Judge Isaacks granted us all the time we requested, and I had no reason to think that Judge Isaacks would not have granted a postponement or a change of venue if we had requested it.”

The following affidavit of Judge J. W. Parker was then introduced:

“State of Texas

In the District Court, Eeeves County,

vs.

Ho. -.

Texas.

Leon Martinez, Jr.

April Term, A. D. 1911, October 3, 1911.

Having been requested to make an affidavit of my connection with the above entitled and numbered cause and a detailed statement of the trial of ’said" cause, I hereby swear to the following facts, to wit:

I was appointed by the court to represent the defendant; this appointment was. made some three or four days prior to the day upon which the ease was set for trial. The defendant was then taken to Midland, Texas, and was brought back to Pecos on the evening before his case'was 'to be called the next morning. As soon as the officer arrived with the defendant, I started to go to the jail to talk with him about the matter; on my' way to the jail I met the sheriff and he showed me a telegram just received by him from Judge Estes, of El Paso, making inquiry about the case. I then went back to my office thinking that counsel had been employed and that I would not be in the case. I had tried before that time to get the court to appoint someone else and also tried to get the district attorney to talk with him and get the court to excuse me. The court, however, persistently refused to do so, but as stated above, when I saw the Estes telegram, I then supposed I was out of it. Mr. Estes came down the next morning, stating that he had been employed and a fee guaranteed to pay him and local counsel; that according to "his agreement with his clients, local counsel must be employed also, and that because of this he would not go into the case at all unless I stayed in it; when I found him persisting in this, I said if I am to be left alone in the case with a certainty of getting nothing out of it or go on with }rou with the prospect of a fee, I shall go ahead with you.

As soon as it was learned that I was still in the case, a number of citizens at different times, some of them in committees, before the case was called for trial, came to me and said that it would ruin me in a business way not to withdraw from the case; that the entire citizenship of the county did not want the case delayed. I simply passed all matters of this kind up, went along and tried the case as best I could, with no time for preparation; that is, Judge Estes and myself did.

We made the following bills of exception in the case, and possibly some others which I do not now recall. When the State read the confession of the defendant, it read all of the confession, except that part of it where defendant said he was sixteen years old. We objected' to this on the ground that all of the confession should be read by the State.

The State proved by the official stenographer and his notes that the defendant, while a witness on the stand of a former criminal case, at Barstow, Texas, testified that - he was seventeen years old. We took a bill of exceptions to the court’s failure to limit this evidence as impeaching testimony.

The father and mother of the boy both testified, and after they had both testified as to where the defendant was born, the date of his birth, the number of children that had been born to them, and their respective ages, we then offered in evidence the marriage certificate of the father and mother, showing when and where they were married; we offered this certificate as corroborative of the fact that the witnesses were in fact the father and mother of the defendant, and would best know the age of the defendant, and also as cor-' roborative of the credibility of the father and mother, and as corroborative of the defendant’s statement in his confession. The court excluded this certificate, and we took a bill of exceptions to such ruling.

After the ease was tried, and after we had dictated hurriedly a motion for a new trial, and while the stenographer was reducing it to typewritten form, some twenty-five or thirty men on the road between my office and the courthouse, and within a few feet of the courthouse door, surrounded Mr. Estes and myself, and stated that if the case was appealed the Mexican would be hung before the next morning; that they were determined, no matter what the consequences were, that he should hang before morning, that many citizens would be killed, if any resistance to such hanging was made; they then began to plead with Estes and myself not to appeal the ease; also stating, at least some of them did, that they were determined on the fact that it should not be appealed; some of the parties on the outside of the crowd, not being the ones who were talking directly to Estes and myself, made remarks to the effect that there would be three to hang if the case was appealed; this was not stated, however, by anyone who talked directly to us; they would not allow us to reason with them at all; they seemed to fear that we would convince some of the crowd that they were making a mistake and that they might fail to accomplish what they wanted. I said to the crowd that I wanted them to understand that what I did would not be done because of fear of personal injury to myself; but if it was true that they intended to hang the Mexican that evening or night because of an appeal, I would see that notice of appeal was not given; but that I would not promise what -might happen later on or might not happen; that I simply would not give notice of appeal; they tried to get me'to say that it would not be appealed and that there would be no future action concerning the case; this I refused to do; the two or three who had done most of the talking to me, then said they were satisfied, they would take my word that no notice of appeal would be given; they then walked away.

Mow the statement by me to them to the effect that I feared no personal injury to myself was not literally true; I did not fear injury to myself so much as I feared for my client; but, still, I simply did not know what they might do; I felt that if they undertook to take the Mexican from the rangers, some of them would get killed, and if they did, thej"-, in their rage, would be liable to turn on Estes and myself, and we could not well scrap á whole county, or what looked like a whole county to us at the time.

Mow of course, there were a great many threats made by these people, as I understand, and very serious ones, on their way from town to the courthouse and after they got back to town; but Estes and myself did not hear these; we simply know it from what was subsequently told us.

As illustrative of the extent to which these people were worked up, several days after the trial, they brought a petition signed by nearly everybody in the county and wanted me to sign it; this was a petition to the Governor to let the Mexican hang; also, some days after that, in an effort to controvert the statements before the Governor to the effect that the defendant’s attorneys were intimidated, some of them wanted me to sign an affidavit to the effect that there was no intimidation at all in any shape, form or fashion.

Will say further that at the time Mr. Est'es and myself were surrounded by the citizens aforesaid with a demand that the case be not appealed, we had not then decided for certain that an appeal would be perfected; we had simply decided that we would make a motion for new trial, argue same, and if the motion was overruled, give notice of appeal, and then investigate the merits of our bills of exception; and in the event we should decide that material error had been committed, to go ahead with, the case on appeal, properly prepare same for hearing in the Appellate Court; but in the event we should decide that our bills of exception were not well taken, and that no material error had been committed, to go no further with the appeal; this is the decision to which we had come at the time aforesaid. Will say, however, that I am now sure that but for the demonstration aforesaid, the ease would have been appealed by us and carried to the Court of Criminal Appeals. This is because that after investigation and more mature consideration, our exceptions were such as we would have concluded the higher courts should pass upon it in a case where the death penalty had been inflicted.

Will say further that when the motion for new trial was overruled I stated to the court privately while he was on the bench that I did not desire to give any notice of appeal; that what errors we had saved did not seem sufficiently material to appeal on; and I understand that this statement by me has been repeated as evidence that the failure to appeal upon our part was voluntary. In reply to this will say I made this statement to the court, because I thought he seemed embarrassed, surprised and wondered why no notice of appeal was being given; I thought lie possibly suspected the reason, was to an extent embarrassed over it; so as I had agreed that no notice of appeal would be given, I whispered to the court the above statement so that he would not feel any embarrassment about the matter if he had such feelings. I simply did not want to bring the court into it.

Will say further that in the above crowd of citizens there were several of the jurors who tried the case, and in their efforts to prevent an appeal, they called my attention to the fact that I said to them in my argument to the jury that a fair and impartial trial had been had;- this is true. I did make the above statement, but I made the further statement in connection therewith, and to which I called the attention of said jurors at the time they were making the argument on appeal as aforesaid; this further statement by me was, that so far as I knew, a fair and impartial trial had been had; that there may have been incompetent evidence admitted; that as they knew certain testimony had been objected to by us, which objections had been overruled by the court; that the court might he right, and we might be wrong; that up to that time a fair trial had been had, and when the entire case was passed upon by all the courts, a result had, this would be justice; that so far as the jurors were concerned, the defendant’s attorneys would be satisfied with their verdict; that is, satisfied that they were doing what they thought was just and right, whether they inflicted life imprisonment or the death penalty.

Now, this statement by the defendant’s attorneys to the effect that we would be satisfied with the verdict of the jury so far as they were concerned was used as an argument by some of said jurors, that we had promised not to appeal it, and that we were under obligations not to do so. I mention this because I understand that even the above statement to the jury has been used as an argument that the failure to appeal the case was voluntary.

Will say further that it is recognized that in. the above statement some of the matters stated are matters of mere opinion and not matters of fact; but such opinion has been stated because it is thought that same shows a reason why the case was not appealed, but would have been, but for the happening of the events aforesaid.

J. W. Parker.”

Mr. Cunningham then stated that he had a purported transcript from the clerk of the court, in which the clerk certifies they were all the proceedings had in the trial of the case, and from which was omitted the order convening a special term of the court, and the order appointing the jury commissioners, and that they' were offered for the purpose of showing that the clerk left out those orders when he made the transcript for them.

Mr. W. W. Camp testified he lived at Pecos in Reeves County, and has resided there for twenty-four years. “I left Pecos on the 23d of July and "did not return until Friday. On my return I heard some remarks about lynching Martinez out on the square. They were made after sentence had been passed. I heard some one say they could hang three as well as one. Eight or ten were present when the remark was made. They were standing around the fountain in the square at Pecos. I then went to the courthouse and asked Judge Parker if he knew what feeling existed in regard to an appeal, and he said he did. I myself did not take any stock in it. In answer to the question: ‘What percent of the people in the county who knew of the crime do you think thought he was guilty?’ he answered, ‘one hundred percent.’ I believe one hundred percent of the people believed after the case had been tried that he was guilty. I do not think there is any doubt of anyone who has ever inquired into the facts of the case about the relator’s guilt. In answer to the question: ‘When the jury was drawn were the people all over Reeves County acquainted with the facts?’ he said: ‘Some were not; those living on the outskirts of the county had not heard of it.’ Some had heard the rumor but they had to have evidence to determine his guilt, and I believe that the relator could have received a fair and impartial trial under any condition. In answer to the question: ‘Wasn’t that an idle remark you heard?’ he answered, ‘Likely it was, but I did not so take it. They were dispersing, and made no effort to hang anyone, and it may have been the idle remark of some careless man. This was after sentence had been pronounced.’ ”

Mr. C. Brown testified: “I am sheriff of Beeves County, and was present at the trial. I have three deputies who were also in attendance on court. There were four rangers in Pecos. The sheriff of Midland County was also present during the trial. During the trial I did not know of any intimidation whatever on the part of the people, or any part of them against defendant or the attorneys representing him. After the trial was over, a crowd of men met in the courthouse yard, in front of the courthouse. Before that I did not notice anything whatever that would lead me to believe that either the defendant or his attorneys were in any danger or likely to be molested in any way. When the men came up in the courthouse yard after the verdict had been rendered, I heard what was said. I heard them, call Judge Parker, and when they called him there was only two or three. They were not running, but walking rapidly. The county judge, John W. Leavel, came out in a few moments. Mr. H. L. McGee, pastor of the 'Christian church, was present. No one appeared to be particularly excited. After they stopped several others gathered around. Mr. E. W. Johnson is in the banking business, and one of our county commissioners, and a member of the Pecos Mercantile Company. He is a man about fifty-eight years old. Mr. Johnson is a good citizen. He is not a man calculated to provoke a breach of the peace under any circumstances, and has the reputation of being a law abiding citizen, and I do not think he would tolerate mob violence. I have known him fifteen or twenty years, and I heard most of the conversation between Mr. Johnson and Judge Parker. I did not hear Mr. Johnson tell Judge Parker that if he or Judge Estes appealed the case that they would hang the Mexican before the next morning. If he had said that I think I could have heard it. I did not hear Mr. Johnson or anyone else say the people were determined there should be no appeal. I did not hear anything said that I thought would place the prisoner or Mr. Estes or- Judge Parker in danger. I did not hear anything that alarmed me in any way with reference to the security of the prisoner or his attorneys. I do not know that I can repeat the words I heard Mr. Johnson use, but the effect was that they did not want the case to be appealed. It was claimed that defendant had a fair and impartial trial, and had been convicted, and they wanted the law to stand as it was. Mr. Parker nor Mr, Estes did not call on me for any assistance. I was present, and they could see me. Nothing was said to create in my mind the impression that there was any danger. The people had been quiet and peaceable during the entire trial, and I had been assured that nothing would be done; that they intended to let the law take its course. Mr. Johnson was talking to Judge Parker, and once in a while three or four others would say something, and some of them seemed a little excited. The way I understood it they were appealing to them not to appeal the case. The rangers had their Winchesters and arms with them. They were there to protect the prisoner if he needed protection. Mr. Johnson was walking fast and out of breath when he got up there. There may have been as many as thirty-five or forty men present during the conversation. At times several were talking at once. They talked about fifteen or twenty minutes. I do not think anybody was angry. 1 heard Mr. Johnson talking to Judge Parker, and heard him beg him not to appeal the case; that relator had had a fair trial and was guilty. There was one of the jurors present, but I did not hear anything he said. I did not hear anyone say they could hang three as easy as one, but I heard some one make a remark of that character. I am acquainted with the citizenship of Reeves County, and the defendant at that time could have a fair and impartial trial. The defendant made a confession, but' I do not know that I had told anyone of that fact before the trial. In my opinion the citizenship of Reeves County did not have their minds made up that defendant was guilty until after the trial of the case. In my opinion the defendant received a fair trial. He confessed to me that he committed the crime about a mile or two miles from Saragosa. That was not the confession used in court. I was present in the courtroom when the prisoner was sentenced. He did not say he desired to appeal the case, nor give notice of appeal that I heard.”

Mr. P. W. Johnson testified: “I am sixty years of age. I have lived in Reeves County twenty-five years. I am in the banking business, mercantile business and cow business. I was present during the trial of Leon Martinez last July. There was not anything during the trial to indicate to my mind that there was any danger pf mob violence. After the trial, I consulted with Judge Parker with reference to an appeal in the case. About half an hour after the verdict had been rendered, there were five or six men who came to the bank and asked me to go and speak to Judge Parker and ask him not to appeal the ease, saying that Judge Parker had stated that defendant had a fair and impartial trial, and that there were no grounds for appeal. They knew I had been associated with Mr. Parker, and he had been our lawyer for quite a while, and they wanted me to use my influence with Eim and get him not to appeal the case. I asked where Judge Parker and Mr. Estes were. Just as I got out of the bank I saw them going to the courthouse, and I holloed to Parker, but they did not hear me. Some one in the crowd holloed, and they stopped right at the walk that leads into the courthouse. I do not recollect all of them that were with me, but remember Honaker, May-field, Pink Herbert, George Landrum, Mr. Hosie and several others. We did not run to overtake them, and when they stopped we had a conversation with them. When we walked up to the men I told judge like this: I said, judge, these gentlemen are citizens of Beeves County, and you know most all of them. I said they have come and asked me to talk to you and be spokesman for the crowd, and I said now the first question I want to ask you or say to you is this: I said, didn’t you say that the Mexican boy has had a fair and impartial trial and is proven guilty? I said, didn’t you say that? Didn’t you say he had a fair and impartial trial? He said, yes. I said then judge they tell me you are going to appeal the case, and I want to ask you as a citizen and in behalf of these men here not to do it, not to prolong the case, but let it go on, let the boy suffer the penalty. I said it would be best for the country. I ‘said if we don’t do that it will cause mob law in the future, and I said I would not have anything like that in our county for anything, and I said as a friend I don’t believe you have any ground whatever to appeal the case on, let me beg of you not to appeal the case. Judge Parker said: ‘Johnson, I want you to always understand you can not scare me.’ I said, judge, you know we did not come here to scare you, we are not on that mission. I said we want to keep the peace and dignity of our county up, and you know I would not come to you to bulldoze or anything like that in a case like this, just come as a neighbor, a friend and citizen to get you not to do this, for I think judge it is the best, and he talked on quite a while and finally he said, ‘Well, you all go on off and it will be all right,’ and that settled it. I did not say that if the case was appealed we would hang the Mexican. I nor anyone in my presence did not say that we were determined there should be no appeal. We made no threat of any kind. Judge Parker had been attorney for the bank, and I approached him as a friend. Mr. Hosie did not get on a box and make a speech. There was nothing said by anyone calculated to intimidate, the attorneys. The only thing of that character said, as I recall it, after Mr. Parker had said it would be all right, to go on, I think Mr. Landrum made the remark that they had better not appeal the case—they would hang the defendant if they did, and Mr. Hosie made some remark, when I turned to Landrum and said, you would do nothing of the kind. We all left then. I was in the courthouse when Judge Isaacks passed sentence on the defendant. He asked him if he had anything to say why judgment of the law should not be pronounced against him, and he said, ‘Judge, only as to my age.’ I think that is all he said.

“I resided in Holán County before going to Beeves County. I was in Pecos from the time Martinez was brought there charged with murder until the trial was over. In regard to lynching him, the only talk I heard was on Sunday night. I was called up on Sunday night when he was arrested out on the creek. A crowd of boys wanted to go out there and take the boy and lynch him, and I went down there and talked to the boys, and told them we would have a trial. That was when they were supposed to be bringing him in. The rangers arrived Wednesday or Thursday. Judge Isaacks said he wanted to use all precaution possible, and it would be best to have the rangers there.

“I think there were fifteen or twenty present when I talked to Judge Parker and Mr. Estes. Mr. Parker is not our attorney now, and I have suggested to Mr. Parker to leave Pecos since that time. When I heard that Judge Parker had written letters down here claiming he had been intimidated, I went to him and talked to him about it, and said to him, ‘Judge, you don’t mean to say you had any idea that we came up there to intimidate you and scare, you off from doing your duty,’ and he said, ‘Ho, Johnson, I didn’t think that of you, but some remarks were made in the crowd that might lead me to believe that',’ and I said, ‘Judge, if that is the case you might as well fold your tent and leave here,’ and he has not been our attornej' since that conversation.”

Mr. C. R. Moore testified: “I am a Texas ranger, and was present at the trial of Leon Martinez in Pecos, Reeves County, last July. We were ordered there by the authority of the Governor. There were four of us, and we were present during the entire trial. We were there to afford protection, if it became necessary. I did not see anything that would indicate the necessity for our presence, but we carried the defendant from the jail to the courthouse, and we stayed at the jail and in the courtroom. Hothing occurred that I heard that would indicate danger to anyone from mob violence. I was present when Judge Isaacks passed sentence on the defendant. He said something about his age, but did not say anything about wanting to appeal his case. When we got there the sergeant' reported to the sheriff, and I had instructions to work under the sergeant. The judge nor sheriff did not give me any instructions. The people were orderly all the time we were there. We left on Sunday morning after the trial was1 concluded.”

J. M. Mayfield testified: “I live at Saragosa in Reeves County,, the community in which the crime was committed. I was present during the trial of Leon Martinez, being subpoened as a witness, and got to Pecos about 3 o’clock the day before the trial commenced. I did not see anything during that trial that would indicate to my mind that there was any violence contemplated on the defendant or his counsel. I do not know of any threats made against either of them. I was present during the conversation between Mr. Johnson and Judge Parker. Mr. Johnson was requesting him for the sake of the county and the good of the people not to appeal the case. Mr. Johnson made no threats, and did not talk in an angry tone of voice. I heard no threats at the time, and I heard nothing in regard to any trouble of any character. I heard no threats of any mob violence. After the sentence had been passed on the defendant, I went down town and heard some remarks in regard to what ought to be done with the defendant. Some expressed themselves that he ought to be hung, but there was no talk of mob violence. I was present in court when sentence was pronounced against defendant, and heard Judge Isaacks ask him if he-had anything to say why sentence should not’ he pronounced against him; he made some reply, but I did not understand all of it. I heard no notice of appeal given. I heard what Mr. Honaker said when Mr. Johnson was talking to Judge Parker. He remarked if there was any mob violence the lawyers would be responsible for it, and he asked him for the sake of the women not to appeal the case, adding, if this is done, I will move my family out of Peeves County. Mr. Honaker made no threats whatever. He never said they were going to mob Martinez if the case was appealed. Just said if the case was appealed, and there should be any mob violence, the lawyers would be responsible for it. I was at Saragosa when I learned of the death of Miss Brown. I was informed by Mr. Honaker. The body was found about three miles from Saragosa. Mr. Pink Harbert found the body. Some fifty men were present when they brought the defendant to where the body was found. The first I saw of him was at- that place. I had asked some Mexican women living on the road east of Mr. Honaker’s, if they had seen the defendant pass there. And they had told me they had seen him. I then asked him if he had passed where the Mexicans lived and he first answered no, and then said yes, I did. I did not threaten to shoot him, but when the boy was taken in the house, I said: 'that hoy is guilty and we might as well take him while the sheriff is not here and hang him.’ He then asked to be allowed to speak to his father and mother, and I told him he was not worthy of it, when he remarked, 'wait until the sheriff comes and I will tell him.’ This was before he was carried to jail at Pecos. There were some forty or fifty men living in Saragosa community present when this occurred. I was not with Mr. Johnson when he went to the courthouse to. talk to Judge Parker, but I heard down town they were going to appeal the ease, and I went to the courthouse and heard the conversation between them. I made some remarks to Judge Parker during the conversation. I said, 'Judge Parker, you said when the case was tried that the defendant had had a fair and impartial trial, and left the impression you would be governed by the verdict of the jury, and’ I said for God’s sake go back to your office and clean your hands of this.’ I was in four or five feet of Judge Parker at the time this conversation took place. I do not remember all who may have took part in the conversation. I did not hear any talk of lynching the defendant if the ease was appealed. I did not make a statement in the presence of W. W. Camp and others that I was in a crowd of eight or ten men who agreed that if an appeal was taken that we would lynch not only Martinez but also both of the lawyers. Neither did I hear anyone else make that statement. Most of these people with whom I talked believed Martinez guilty. I did not hear anyone say that they did not believe he was guilty. I talked to a great many people after the trial. I do not know whether an account of the killing was pub lished in the daily paper at Pecos or not. It was published in the weekly paper, hut this was after the trial of the case.”

John W. Lea veil, county judge of Beeves County, testified by affidavit that he was present during the trial of Leon Martinez in the District Court of Beeves County, and that he received a fair and impartial trial, and at no time during said trial was there a mob present, nor was mob violence threatened.

H. L. Magee, pastor of the Christian church at Pecos, testified that he was present during the trial of Leon Martinez, and that according to his judgment, he received a fair and impartial trial; he further says that at no time during said trial was there any disturbance; nor so far as he could determine was there a mob present.

Wylie Cole, a druggist of Pecos, testified that he was present during the trial; that the trial was fair and impartial, and at no time during said trial was a mob present, nor was there mob violence threatened.

T. Y. Moorhead, city marshal of Pecos, testified that he was in Pecos during the trial; that in accordance with his judgment Martinez received a fair and impartial trial, and that at no time during the trial was there a mob present in Pecos, nor was mob violence threatened.

J. S. Long, editor of the Beeves County Becord, published at Pecos, Chas. S. Monahan, jeweler, Wm. H. Moore, physician, and J. H. Heard, cattleman, all testify to the same facts as the city marshal.

The affidavit of Lester C. Majors, the Official Court Stenographer, was introduced. It reads: That the defendant’s attorneys “one of whom was appointed by the court immediately on the bill of indictment being returned into court, to defend the case, Judge J. W. Parker, an eminent attorney of Pecos, who was afterwards employed by defendant and paid a fee to represent him, and the other, the Honorable George Estes, of El Paso, who was also employed to represent the defendant, were given every opportunity to secure testimony, and were granted everything that they asked. Neither the defendant nor either of his attorneys requested a private audience among the defendant and his attorneys, but his attorneys did request an audience with the defendant, and the court instructed a Texas ranger present to remove the defendant into a private room where his attorneys might consult with him, which was done, and no objection was made by either the defendant or his attorneys to said ranger being present during the interview. The defendant was given all the time that he asked to prepare for trial. No request was made for a postponement of the trial of the cause, either before announcement of ready or during tjae pendency of the case; neither was a change of venue asked for by the defendant or his counsel. All the time that was asked by the attorneys was given for the argument of the case.

“Judge J. W. Parker, of Pecos, in discussing the case before the jury, used to the jury, in substance, the following language:

“‘Gentlemen of the jury: The defendant has had a fair and im partial trial. We have nothing t'o complain of in the trial of the case, and when you have rendered your verdict we will be satisfied.’

“After the jury had rendered a verdict, finding the defendant guilty and assessing his punishment at death, the defendant’s attorneys prepared and filed a motion for new trial, which motion for a new trial was signed by both the attorneys, Judge J. W. Parker of Pecos, and the Honorable George Estes of El Paso; and the court, after due consideration of said motion, overruled same, and in open court, in the presence of the district attorney, the official shorthand reporter, and others, asked Judge J. W. Parker, one of defendant’s counsel, if he desired to give notice of appeal. The said Judge J. W. Parker, then and there, in open court, announced that there had been no error committed in the trial of the case, and that it was useless to take an appeal, and that the attorneys, meaning himself and the Honorable George Estes, had consulted about the matter and decided not to appeal the case. Afterward, while court was still in session, and the judge upon the stand, Judge J. W. Parker came to the judge’s stand, and in a private conversation with the court, stated to the court that some people had approached him and the Honorable George Estes and asked them not to appeal the ease, but that he wanted to state to the court that the action of said people in making said request had nothing whatever to do with the determination, of counsel for the defendant, not to appeal the case; that before he and the Honorable George Estes had been approached by said people with said request, that he and said George Estes had consulted between themselves, and had decided not to appeal the case, and that such conclusion had been arrived at before anyone had approached him and Estes with the request not to appeal said case.”

The above is all the evidence introduced on the hearing before us. We do not care to write further than has already been written, but inasmuch as we do not agree with the conclusions reached by Presiding Judge Davidson, we make the following conclusions:

1. We do not agree to the conclusion .that relator was transferred to jail at Midland only to prevent him from being lynched. Judge Isaacks, the only witness who testified on this point, says: “I ordered the sheriff of Peeves County to deliver him (defendant) to the sheriff of Midland County, because the jail was in an unsafe condition, from the standpoint of those confined in it and from the standpoint of probable escape therefrom. They have almost completed a new jail there.” “Q. Did you have any other reason, judge, for ordering the prisoner taken to Midland? A. Absolutely none.” “Q. You did not fear he might be lynched if he remained there? A. Hot the slightest. I sent him there for his personal safety. I can not say that I feared he would be mobbed, but to guard against any possibility.” What' Judge Isaacks said about a mob: “Why I could not begin to tell you all that was said, because several people remarked to me something about a mob. The first conversation I liad was with a friend of mine, Mr. Johnson, the proprietor of the hotel. He said the people on the creek —that is the term used expressive of the neighborhood in which the crime was committed—when they first heard of it, were wrought up, and he was afraid the prisoner was going to be violently dealt with for a while, but the excitement had subsided, and there was absolutely no danger of mob violenceThe remainder of his testimony is published above. We do not agree to the statement by Judge Davidson that “the evidence of Judge Isaacks is not only corroborated as to the mob spirit pervading that whole country, but it is evident from-the facts that this mob spirit was pervading the entire county and violence was threatening and imminent.” We think the evidence establishes exactly the contraiy, and so find as a fact.

2. We do not agree that the transcripts conflict with each other. In the trial of the habeas corpus it was made manifest, that defendant’s attorneys had asked for a transcript of the proceedings had on the trial of the case, and the clerk had furnished them such proceedings, but had not included the orders convening a special term of court, nor the order appointing jury commissioners. In the transcript as introduced by the State, these were included. This made no conflict. As we read the record there is no justification for the conclusion of our presiding judge in this respect.

3. The judge did not order the rangers to Pecos, but the record discloses (see testimony of Banger Moore) that they were ordered there by the Governor. Judge Isaacks doubtless made the request for rangers, which requests are frequently made by our judges when cases are to be tried that the people of any part of a county are taking a deep interest in, and judges so doing have not heretofore been criticised but commended.

4. We do not agree that Mr. Mayfield testified to threats of mob violence after sentence was pronounced. His testimony shows that when he spoke of hanging the defendant, it was before the trial, and before he was carried to jail. Ho officer was present at this time, and if the mob spirit was rampant, there was nothing to prevent them from hanging defendant' at that time. This is strong evidence that the people intended no mob violence, for then defendant was in possession-of the people of Saragosa where the crime was committed, and they delivered him to the officers on the sheriff’s return. Neither does his evidence justify the conclusion “that there was general talk about lynching, if the case was appealed.”

5. Neither do we agree that Mr. Camp testified, when asked, what percent of the people believed appellant guilty, he replied, “one hundred percent.” The testimony of Mr. Camp is copied in the record. The question asked was: “What percent of the people who Tcnew of the crime do you think thought - he was guilty ?” and he answered one hundred percent. This did not relate to all the people of Pecos, Beeves County, but only those who Tcnew of the crime. This is manifest by the further testimony of Mr. Camp who said in answer to the question, “Now, when the jury was drawn were the people all over Peeves County acquainted with the facts?” Answer. “Some were not. Those living on the outskirts of the county had not heard of it,” and testified that appellant could obtain a fair and impartial trial in Peeves County. The picking out of an isolated statement, that the witness himself explains, and contradicted by the entire record, as we read it, as a fact, we can not agree to. This expression is sought to be woven into the opinion of Presiding Judge Davidson in many instances, and when we take the evidence of the witness as a whole, it will be seen that the conclusion of the presiding judge is not borne out by the testimony.

6. There is nothing in the record to indicate that appellant's counsel were not granted all the time they desired to file a motion for a new trial. In fact, the testimony of Mr. Estes, attorney for relator, states they went in search of Judge Isaacks to notify him they were ready to present it, and requested the district attorney to so notify him. The record discloses they were granted all the time they desired in every respect, and "the testimony of relator’s counsel so state, as well as all the remainder of the testimony. No complaint is made by relator or his counsel that full and ample time was not granted him in making a full and fair presentation of the ease throughout.

7. In the opinion of Judge Davidson the testimony of Mr. Estes and the affidavit of Judge Parker, together with other isolated disconnected statements, are taken as conclusively establishing that they were prevented by a mob from giving notice of appeal. If one will read the record as a whole, they will conclude that such a finding is against the great weight of the testimony on this hearing. One who has read the record will be convinced that the statement of our presiding judge, must have been copied from 'a statement of relator’s counsel for it is a one-sided and partisan statement. However, in the beginning of this opinion we discussed the motion for new trial, and all matters assigned, and held if appeal had been perfected, it would have been of no avail.

8. It is not only the contention of the State that no notice was entered of record, but it is also contended that no notice of appeal was given, and no appeal taken. Our presiding judge, in taking the isolated and unsupported statement of appellant that: “I told him I wanted my case taken to the Court of Criminal Appeals, and my attorneys would do the rest,” as true, ignores the testimony of Judge Isaacks, who says relator made no such request; also the testimony of the sheriff who was in attendance on court; the State ranger, Mr. Moore, who was in charge of relator and the testimony of Mr. Johnson, a banker, and all the others who testify on this point. Even Judge Parker, in his affidavit, states no notice of' appeal was given, but on the contrary it was stated by his counsel publicly in open court that no notice of appeal would be given, Judge Parker stating that Judge Isaacks seemed surprised that no appeal was to be perfected, so much so that he took the trouble to explain to him that he had become thoroughly convinced there was no error in the trial and hence declined to give notice of appeal. Not only the preponderance of the evidence, but all the evidence, other than the isolated testimony of relator, shows that no notice of appeal was given, and we find as a fact that no notice of appeal was given. It is not a question of others waiving the right of appeal for him, but the question is when as a fact appellant and no other person gave notice of appeal, the conditions of the right of appeal as given by law is not complied with, for the Code of Criminal Procedure provides that notice of appeal must be given in open court and entered of record and when notice is not given the appeal can not be entertained by this court. All of the lengthy reasoning of our presiding judge on this question is of no force, for when anyone reads the record as a whole, he must conclude that appellant is not supported in the statement that he gave notice of appeal by the evidence, but the record overwhelmingly convinces one that no notice of appeal was given. No person can conceive any reason why all this array of honorable men would go on the stand and testify falsely in this regard, while the greatest of incentives and motives can be attributed to appellant. In addition, it is the first instance we know of where the records of a .court of record will be permitted to be impeached by the unsupported testimony of an interested witness, when all the testimony of those not interested support the record of the court.

9. The statement of. our presiding judge that: “The writer does not believe that any candid reader can look through this record and not reach the conclusion, and the only conclusion to be deducible from the record, that the district judge understood and appreciated the mob spirit which surrounded his courthouse, and ivas prevalent in that community at the time of the trial, and at the time of overruling the motion for new trial and sentence was pronounced against the accused,” we can not permit to go unchallenged, and for this reason we have copied the entire evidence in this- opinion that no such stricture on one of our trial judges should be permitted to go in the books without the evidence being there also, that “each candid reader” may deduce his own conclusions therefrom. Judge Isaacks says such is not the fact'; the sheriff and county judge say it is not correct; the minister in charge of the Christian church at Pecos says it is unfounded; the marshal of Pecos says such conclusion is unauthorized; the banker, the physician, the cattleman, the farmer, and all who attended the trial say such is not the fact, unless it be the attorneys for appellant, and they state no fact or circumstance that would support such finding at the beginning or during the trial of the case, but only some circumstances after the return of the verdict of the jury, that led them to believe that if they perfected an appeal there might be danger, hut knowledge of this, if true, is shown not to have been known to the district judge, who states that all he knew of it' was what Judge Parker told him after the motion for new trial,had been acted on, and was at that time informed that this had not influenced his, Judge Parker’s, action. The great preponderance of the evidence would indicate that if counsel became alarmed at that time, it was unnecessarily so, and no real grounds for fear existed. Our apology for publishing the entire evidence is found in this and other expressions in the opinion severely reflecting on the trial judge and other officers of the court, and in our opinion it is such expressions as this that is bringing the judiciary into disrepute. We have no doubt but Judge Isaacks, and all the members of his court, acted from the purest and best of motives, and even though we had found grounds to reverse the case or set aside the judgment, there is in the record no excuse or justification for impugning their motives and attributing to them any other than the highest minded and best incentives, and a wholesome desire to enforce the law of this State, and by prompt punishment of those who commit crimes of the character that arouse the public mind render confidence in the judiciary more secure. The Legislature in its wisdom, in certain character of eases, has provided that crimes of a given character may be indicted and tried in another county in which the court in that district is then in session, and has provided for special terms of District Court under given conditions. This was not done that any innocent person might be made to suffer, but that those guilty of offenses might be brought promptly to trial. It is to be regretted, that it is in a measure true, that where mob violence occurs, it is because the human race has to some extent lost faith in the courts of the land. In this case there is not a scintilla of evidence that any juryman who sat in the case had prejudged the case, or that anyone of them before the trial had heard any of the details, through hearsay or otherwise. If it were otherwise, doubtless the able counsel who represented relator, under the latitude permitted on this hearing, would have presented the evidence, or some evidence of such condition, and in the absence of any evidence to the contrary, we must and do conclude, that the trial judge was fair and impartial, and tried the case in accordance with the laws of this State, and his action is not subject to the severe criticism contained in the opinion of the presiding judge. The strictures in regard to change of venue are, in our opinion, unauthorized and uncalled for. Eelator’s counsel asked for no change of venue. There is no evidence that at the beginning of the trial they were in fear of their life, if at any time, and relator’s counsel, Mr. Estes, says there was nothing in the conduct of Judge Isaacks that could and would have led him to believe that he would not give fair consideration to any motion he might have seen proper to submit; and under the evidence adduced on this hearing, we find, as a fact, that at the time of trial no sufficient grounds existed to authorize a change of venue. The question propounded by our presiding judge: “Is not this failure to enter notice of appeal strong and convincing evidence of an unfair trial?” is uncalled for. It is based on a con elusion drawn from the evidence of relator alone, and against the evidence of all the other witnesses, and is an unfair criticism, of the judge who testified on this trial, that relator did not give notice of appeal, and added, if relator had even intimated he desired to appeal the case, he, himself, would have given notice and entered the notice of record. The trial judge in making this statement, and his statement is certainly as worthy of as much credence as relator’s, by the question asked is notified that this court believes what he said is untrue. To this we enter our most solemn protest, and especially so as the trial judge is supported by all the other witnesses, and relator supported by none.

10. As no notice of appeal was given by appellant or anyone else, a fact which we find under the evidence, and we refer to the testimony as bearing on that point, the sentence is not void, and all the lengthy argument of our presiding judge based on the conclusions of a finding that notice was given, is not applicable to the case as made by the testimony, and as our presiding judge’s construction of article 5, section 5 of the Constitution, is based on the assumption that notice of appeal was given, for notice of appeal must have been given in open court to confer jurisdiction on this court, under all the decisions of this court even those cited by him, we do not care to discuss it. For, to paraphrase his language, we do not think any candid reader can read the evidence, and find any justification for this court to conclude that notice of appeal was given, in the face of the overwhelming proof to the contrary.

11. In regard to the issuance of a writ of certiorari, even under the common law, it took' the action of the court to grant the writ, and certainly it could not be granted if a majority of the members of the court find that the application does not state grounds authorizing the issuance of the writ, and we find as a conclusion of fact that in law the application filed with the clerk of this court, without the consent of the court, presents no grounds which would authorize the issuance of the writ of certiorari, and we certainly, if we have the right to issue, we also have the right to order it not to issue. As said hereinbefore, we do not -discuss the right of this court to issue the writ, not deeming it necessary to a decision in this case, as no grounds are stated in the application which would justify its issuance. The numerous cases cited by our presiding judge are based on article 946 of the Bevised Civil Statutes, which relates solely to the Supreme Court, and, of course, can have no application in criminal cases, for that court has no criminal jurisdiction. Ho such provision is found in the Code of Criminal Procedure, and article 6, section 5, certainly do.es not confer upon this court any power to issue any writ other than the writ of habeas corpus, except such writs as are necessary to enforce our jurisdiction, and as the right of appeal by that article is given in all cases, with such exceptions and under such regulations as may be prescribed by law, and the Legislature of this State having enacted a law, that to give this court jurisdiction of a case, notice of appeal must be given in open court, and the same must be entered of record, and that the appeal must be perfected at the term of court at which the conviction is had, raises a grave doubt in our mind of our right to grant an appeal by certiorari or otherwise after the adjournment of a term of court, where no notice of appeal was given, and the decisions quoted from other States by our presiding judge are from .courts in States having different provisions in the constitutions and laws. But we do not wish to be understood as passing on the question of our right to issue the writ for the application presents no sufficient ground for the issuance of the writ of certiorari, even though we had the power and authority to grant it.

12. No one has contended that relief could not be granted under a writ of habeas corpus if the proceedings were void. But it is as equally well settled that if not void, we could not grant relief from a judgment entered by a court of competent jurisdiction under a writ of habeas corpus. Are these proceedings or any portion thereof void? The term of court was called in accordance with the provisions of the law of this State. The Act of the Legislature authorizing special terms of the court to be called in vacation, the entry of such call to be made in the court when it convenes, has been specifically upheld by this court in Ex parte Boyd, 50 Texas Crim. Bep., 310; Ex parte Young, 49 Texas Crim. Bep., 536, and McIntosh v. State, 56 Texas Crim. Bep., 134. It is true that Judge Davidson entered a dissent at that time in those cases and the Boyd case was carried to the Supreme Court of the United States, and there dismissed for want of jurisdiction in that court. The grand jury was properly drawn and empaneled under that law; the indictment returned into open court; the case set down for hearing, and appellant served with a copy of the indictment' and copy of the special venire as required by our Code. Our Code provides that he shall be served with a copy of the indictment two days before being compelled to announce for trial; that if for any good reason he should not then be ready, he may file an application to postpone or continue. There is no question that he was served with the indictment two days before being called to announce. He then filed no application asking for further delay. The petit jury was drawn and empaneled in accordance with our laws; the proceedings during the trial were regular in every respect; verdict returned, judgment entered, motion for new trial overruled, and sentence passed. Every step taken in accordance with the laws passed by our Legislature, and we hold the judgment is not void.

13. In one part of the opinion our presiding judge holds that notice of appeal was given, and then in another part holds: “Duress having prevented the giving or entry of notice of appeal, did not oust this court of jurisdiction.” The two findings are contradictory in themselves. But having held that no notice of appeal was given, we also hold that there was no duress which prevented the giving of notice of appeal. While Mr. Estes and Judge Parker in their testimony would indicate that they were put in fear, yet (at the time of the trial) in open court, after declining t'o give notice of appeal, Judge Parker informed the trial judge that (he was not afraid, and that) the action of the citizens had no influence with him in the premises. Shall we take the words of Judge Parker then, or now, when he is seeking to save his client'? If the evidence of Mr. Estes and Judge Parker was the only evidence, we might conclude that their effort now to save their client was disinterested, _and an effort t'o see that justice was done, but when we consider the evidence of the pastor of the Christian church, who was present on that occasion, the sherifE and county judge of the county, the evidence of Mr. Johnson, of Mr. Mayfield, and the other witnesses in the case, to find that there was “duress” is as indefensible and unjustifiable as the finding that notice of appeal was given. The evidence would justify the conclusion that an appeal was made to them not to appeal the case, but no such conduct as would justify the conclusion that there was duress. So we find, as a fact, not only that no notice of appeal was given, but also that there was no duress which prevented notice of appeal from being given, and arriving at this conclusion we do not deem it necessary to discuss the able and learned discourse of our presiding judge on duress. We also hold that had appeal been perfected, or writ of certiorari granted, no grounds exist which would authorize us to set aside the verdict and judgment.

14. The conclusion of our presiding judge, that “appellant protested his innocence, and it was suggested by Mr. Mayfield that if he did not make a confession they would hang him,” has no foundation in the evidence. According to the record he has at no time protested his innocence. And here we might' remark that it was not incumbent on him to do so. He had the legal right to remain silent, and, under his plea of not guilty, to demand and require of the State proof of his guilt beyond a reasonable doubt. Neither did he make a confession at the instance of Mr. Mayfield or to him. He made a confession to the sheriff, but this was not introduced in evidence on the trial of the case. The confession that was introduced was one made to Mr. Bradjq the district attorney, after appellant had been conveyed from the scene of the crime to the jail at Pecos, and there is no evidence that it was extorted from him, but the evidence of Mr. Brady is that it was freely and voluntarily made and there is no evidence to the contrary. There was no exception reserved to the introduction of this confession, other than that the State did not introduce all of it, and that part not introduced by the State, the defendant was permitted to introduce. The severe criticisms of the sheriff and district attorney contained in this paragraph of the opinion of our presiding judge are wholly unjustifiable, in our opinion, and we here enter our protest, and as to whether the evidence justified a verdict against defendant, we refer to the statement of facts on the trial of the case herein reproduced. The cases cited we do not deem it necessary to discuss, because the evidence does not justify a finding of fact upon which the argument and findings are based, in this case. Relator at the time of trial, in the application for a writ of habeas corpus, or in the application for writ of certiorari, did not claim that the confession was made under duress, bat the attorney for relator in this court said: “The confession is strictly statutory,” and the conclusion arrived at by our presiding judge is based upon his imagination of what might have taken place, and not upon any evidence in this record. We hold that' there was no circumstance introduced in evidence which would render the confession inadmissible, or would require a charge of the court on duress in connection therewith.

15. That part of the opinion of our presiding judge which holds, “if a man is not legally informed of the fact that there is a case pending against him in court, a judgment against him would be a nullity,” is entertaining, but has no application to the evidence in this case. Article 546 of the Code of Criminal Procedure, provides: “No arraignment shall take place until the expiration of at least two entire days after the day on which a copy of the indictment was served on the defendant.” In this case it is not contended that' any attempt was made to arraign the defendant until he had been served with a copy of the indictment two entire days prior thereto. Another expression of our presiding judge in this connection, “An indictment returned at a term not authorized by law, is a nullity,” is but another expression of his that the Act of the Legislature authorizing special terms of District Court is unconstitutional. This has been passed on by this court in so many cases we do not deem it necessary to again discuss it. The “building of a straw man and then tearing him to pieces” is adroitly done by our presiding judge in many instances in this case, and none more flagrantly than in this instance. If for any reason at the expiration of two days, the defendant is not ready for trial, our laws provide for the filing of motions, stating the reasons, and longer time is granted if any good reason is shown. In this case no contention is made that the defendant was not then as ready for trial as he would have been at any time in the future. As illustrative of the position of our presiding judge in this case, we would refer to his opinion in the case of Ex parte Boyd, 50 Texas Crim. Rep., 309, in which he holds that the Act of the Twenty-Ninth Legislature repealed certain provisions of the statutes theretofore existing, while in this case he holds that the Act of the Twenty-Ninth Legislature does not repeal those provisions.

16. The right to challenge the array of grand jurymen is also raised by our presiding judge, not by relator, nor his counsel. However, no reason is given why any member of the grand jury that indicted relator was disqualified, and certainly the evidence before us raises none. This but illustrates the extremes to which our presiding judge is driven in an effort to sustain his opinion in this case. If for any reason a challenge to the grand jury or any member of the petit jury existed and appellant not accorded the right at the time of its organization, it could have been raised by appellant at the time he was called on to announce ready for trial. This question has been decided in so many eases we do not deem it necessary to enter into a discussion of it.

17. In regard to that part of the opinion relating to “due process of law” it is insisted that to try a person at the same term of court at which he is indicted is improper. This has been the custom in all of our courts, and it is a matter of frequent' occurrence for them to be tried the same week. In western Texas many of the terms of court last but one week, as fixed by law, and if it was not permissible to try a man the same week, then in those courts each case must be continued one term, and as there are but two terms a year, it can readily be seen what would be the result of such holding.

18. The contention of our presiding judge that the indictment is void because relator was not present in Eeeves County when indicted, is too absurd to receive serious consideration. Hundreds and thousands of men are indicted for offenses they did not even know the grand jury had under investigation. In fact, its proceedings are required by law to be kept secret, and no one is supposed to know what takes place before that body when in session. If it was the law that a person must be notified that the grand jury was going to investigate a case against him, and when the investigation would begin, doubtless the defendant would be in South America or some other land before the grand jury could return the indictment. And if it is the law that the indictment is void, because it might be supposed that some members of that body had heard of the case before being empaneled on the grand jury, and because of the state of feeling in Eeeves County at the time of trial, then no indictment could ever be returned in this case, for no one doubts that the facts of this case are more generally known now than at' the time of this trial. Our laws make no provision for the grand jury of any other county to return an indictment in a murder ease, but it must be returned by a grand jury of Eeeves County, or appellant go free. Such construction of the law would be such an absurdity no one can seriously contend therefor. The indictment must be returned by a grand jury of Eeeves County if a man is to be tried for -a murder committed in that county, and there is nothing in the record which would show a state of facts that the grand-jury as organized could not return an indictment, and the indictment is not void.

In the concluding paragraph of the opinion of our presiding judge, he expresses the appreciation he feels for the assistance rendered him by counsel in the ease, and the Assistant Attorney-General, Hon. C. E. Lane, and his assistant, Hon. Shelly Grover. We only desire to say that the Assistant Attorney-General and his assistant, Mr. Grover, who are presumed to represent the State, have filed an able brief in behalf oE the relator, the major portion of which will be found in the opinion of our presiding judge in their language. No effort has been made by them to sustain the action of the District Court of Beeves County, but the brief'filed is but an effort to show why the proceedings should not be sustained. However, we have received valuable assistance from the Hon. Charles Bogan, formerly Land Commissioner of this State, and who entered his appearance for the State in this case, and the district attorney, Mr. Brady, and the brief filed by them, and the authorities cited, so completely answer the contentions of relator and the opinion of our presiding judge, we append it to this opinion. It reads as follows :

“Brief «filed by -Charles Bogan and IV. P. Brady, counsel for the State:

An enormous crime had been committed in Beeves County, Texas, in July, 1911. Eor the purpose of avoiding mob violence by the law’s delay and in order that parties guilty of outrageous crimes against the community and the laws of the land, the Legislature of the State of Texas made special provision by which, under the Constitution of the State of Texas, special terms of the District Court in the several districts of this State might be held for the trial of persons charged with such offenses and to procure an early trial of the case while all the witnesses are in the county, are accessible, and can be had at the trial, both for the State and for the accused.

The judge of the District Court of the district in which Beeves County is situated, in pursuance to said law, called a special term of the District Court of that county. When court was convened in accordance with the law, he appointed a jury commission to select grand and petit jurors to serve at that term of court. The jury commissioners in performance of their duties and oath of office selected grand jurors for that term of court and also petit jurors. Their return was made in the manner and form prescribed by statute. Process was duly issued and the persons selected as grand and petit jurors were sum-' moned in the mode and manner provided by law. The grand jury was legally sworn, empaneled, and charged by the court in the manner and form provided by law.

This grand jury found a bill of indictment against the accused, Leon Martinez, charging him with murder. The accused was already under arrest and in jail. The indictment was by the grand jury duly presented in open court and there received and filed in the manner provided by law.

Upon the presentation of the indictment, a copy thereof together with the copy of the special venire which had been duly charged by the- court, was duly served on the accused and the court immediately appointed counsel to defend him. This attorney had the reputation of being one of the ablest at the bar. The copy of the venire and of the indictment and of the State’s witnesses was served on the accused two full days prior to the day of trial as required by law. On the day of trial another attorney appeared on the scene to represent the accused and he and the attorney appointed by the court represented the defendant at said trial. Prom the special venire, a jury of twelve good and lawful men were selected to try the accused for the offense charged against him.

When the case was called for trial, neither the accused nor his attorneys asked for a change of venue on the ground that the defendant could not get a fair and impartial trial in that county. Neither was a postponement or a continuance suggested except to get the testimony of the mother of the accused. The mother of the accused was then known to be at Toyah on the railroad in the same county and a short distance only from the county seat where the accused wás being tried. The court overruled the motion to postpone with» the understanding that the witness should' be produced in court before the end of the trial. .While the accused made no effort whatever to procure the evidence of his mother, the State, of its own volition, caused said witness to be duly subpoenaed and brought into court. And although the witness arrived in the county seat about half past three or four o’clock in the afternoon, she having come from Toyah to Pecos on the afternoon train, "the father of the accused pretended as if she had failed to come. The testimony of all the other witnesses in the case having been heard, the court postponed further proceedings in the trial until the following day for the purpose of procuring the attendance of this witness for the accused. It subsequently transpired that she arrived in town the day before, but for some reason unknown to the State, was kept secluded by the defendant’s father, and not produced in court until the State learned that she was in the town of Pecos that night, and the following morning she appeared and testified.

The jury trying the accused was regularly and duly impaneled, the counsel for the defendant had the opportunity to and did question all of them touching their qualifications as jurors to sit in that case, and when the jury was finally selected, the number of, challenges to which the defendant was entitled under the law had not been exhausted.

All the witnesses, both for the State and for the defendant, being present in Reeves County at the time the crime was. committed and at the time the accused was arrested, were duly subpoenaed and were present at the trial both for the State and the defendant.

The case was duly argued by counsel, the jury was duly charged by the court, it retired to consider its verdict and in open court returned a verdict of guilty against the defendant of murder in the first degree and assessed the penalty at death, the only verdict that could have been rendered under their oaths as jurors under the law and evidence taking into consideration the enormity of the crime.

The business before the court was the trial and disposition of this ease. A motion for new trial was duly made, filed, heard and over ruled. All the time needed for all purposes was obtained and granted by the court.

In his speech to the jury Mr. Barker, of counsel for the defendant, stated that the accused had had a fair and impartial trial. After the jury had returned their verdict, and while a motion for neiv trial was being prepared, a report was started that the attorneys intended to appeal the ease. E. W. Johnson, a banker at Beeos, was one of the leading and most influential men in the county. Judge Barker, of counsel for the defendant, had been his warm friend, his attorney and counselor. When it became rumored, some few people, knowing the relations that existed between him and Judge Barker, called to see Mr. Johnson at his bank, and called his attention to the fact that the defendant’s counsel, in their argument to the jury, had stated that the defendant had had a fair and impartial trial and requested him to use his good offices with Judge Barker to not delay justice by an appeal, but to let the law take its course. He did so, he and others overtaking counsel on their way to the courthouse from an office in town where they had been to prepare a motion for a new trial. The motion at that time had not been completed. It had been dictated but had not been typewritten.

Judge Barker did not definitely promise that an appeal would not be taken, but Mr. Johnson and others construed his remarks to mean that no appeal would be taken-—and all parties dispersed. Mr. Estes, of counsel for the defendant, went back to town but Judge Barker went on to-the courthouse. Later the motion for a new trial was presented to the court'by Judge Barker in open court and in the presence of the defendant. The motion was overruled and no notice of appeal having been given, the court inquired of defendant’s counsel if he desired to give notice of appeal, and Judge Barker replied that he did not. Later Judge Barker erroneously thinking that' the trial judge may have heard that some of the citizens had called on him not to appeal the ease, personally explained to the court, in open session, that he did not want the court to think he failed to give notice of appeal on account of these persons having approached him, but that he gave no such notice because he thought there was no material error upon which an appeal could be predicated. There being no further business before the court, there was nothing left to be done except to pass the sentence of the law. Before sentence was passed, the accused was asked if he had anything to say why the sentence of the law should not be passed on him to which he replied that he had nothing to say except that he was not seventeen years of age. This issue, however, had been decided against him by the jury.

It is true at the habeas corpus trial the defendant swore that he told the court that he wanted his case appealed to the Court of Criminal Appeals, hut in this he was contradicted by the record, and every witness on the stand who heard him, and was not corroborated by the statement of his counsel, nor by any other person.

When the citizens called on Judge Parker of counsel for the defendant to not appeal' the case and to let the law take its course, Judge Parker did not seem at all frightened. He so advised P. W. Johnson at the time and he also so advised the court when giving his reasons why no notice of appeal was given. When Johnson saw that Parker was misconstruing the motives of himself and of those who accompanied him, he took particular pains to disabuse his mind on that point and gave him to understand that the people were law abiding and that their mission was only a peaceable one. Mr. Estes was certainly not very greatly alarmed at the time that a ‘mob’ would likely do him or his client bodily injury for he did not, at that time, give the matter sufficient thought or importance to mention it to the district judge although he and the judge both ate and slept at the same hotel.

Certainly he was beyond all danger, if he felt any, after he returned to his home at El Paso the next day. He was then free to immediately apply to this court for redress in order to get the record perfected and brought before this court for review. But did he do this? Instead he applied to the Governor for a- commutation of the sentence from death to life imprisonment. Pearing this would not be granted, habeas corpus proceedings were resorted to in this court shortly before the reprieve of thirty days granted by the Governor had expired—more than two months after the adjournment of the District Court of Reeves County. Pinally, on the .... day of November, the day the habeas corpus ease was set for hearing, and without leave of this court being first had and obtained, the relator’s attorneys filed an application for a writ of certiorari to perfect and bring up the record in this case.

Prom the foregoing statement of the undisputed facts in the case, what is the law applicable thereto? Has the relator been tried and convicted by due process of law? If he has, then the relief he prays for should be denied. It is submitted that from the facts-contained in the record, in order to avail the relator, notice of appeal should have been given at the time the motion for a new trial was overruled. But if his counsel had reasonable grounds to fear that to do so, the relator would have suffered bodily injury at the hands of a lawless mob, then it is submitted an application to this court for a writ of certiorari to compel the completion of the record and have it properly brought before this court for review should have been made. Pailure to do so gives this court no jurisdiction.

The statute authorizing tire district judge to call a special term of court at which the relator was tried and convicted is constitutional.

If the relator has been tried and convicted in a trial court.by due process of law, he is not entitled to an appeal as a matter of right unless the appeal is perfected in the manner pointed out by law. Andrews v. Schwartz, 156 U. S., 272 ; McKane v. Durston, 153 U. S., 684; Ex parte Buchanan, 158 U. S., 31; Ex parte Boardman, 169 U. S., 39; Hall v. Johnson, 186 U. S., 480; Ex parte Blackbird, 66 Fed., 541; Ex parte Durrant, 84 Fed., 317; U. S. ex rel. v. O’Neil, 10 App. D. C., 205; Kohl v. Lehlback, 160 U. S., 293; Allen v. Georgia, 166 U. S., 138.

The right of appeal is not essential to due process of law. Reetz v. Michigan, 188 U. S., 505; Carter v. Caldwell, 200 U. S., 293; State v. Chittenden, 127 Wis., 468; Etchells v. Wainwright, 76 Conn., 534.

What is due process of law in the States is regulated by the law of the State. Walker v. Sauvinet, 92 U. S., 90; Am. Pub. Co. v. Fisher. 166 U. S., 468; Holden v. Hardy, 169 U. S., 366; Wenham v. State, 65 Neb., 394.

Due process of law within the meaning of the fourteenth constitutional amendment is secured if the laws operated on all alike, and do not subject the individual to an arbitrary exercise of the powers of judgment. Giozza v. Tiernan, 148 U. S., 657; Minneapolis R. Ry. Co. v. Herrich, 127 U. S., 210; Leeper v. Texas, 139 U. S., 462; Duncan v. Missouri, 152 U. S., 377.

“By due process” is meant a proceeding following the forms of law, appropriate to the case and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must he adapted to the end to be attained; and whenever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of judgment sought. Tirapin v. Leamon, 157 U. S., 51.

Legislation is not open to the charge of depriving one of his rights without due process of law if it is general in its operation upon the subjects to which it relates and is enforceable by usual methods adapted to the nature of the case. Dent v. West Virginia, 129 U. S., 114.

The Federal courts will not interfere by a habeas corpus within the State in the administration of its criminal law's unless fundamental rights especially secured by the Federal Constitution are invaded. Rogers v. Peck, 199 U. S., 425.

A writ of habeas corpus will seldom be held as a writ of error to review in a Federal court the proceedings of a State court. Storti v. Massachusetts, 183 U. S., 138.

Federal courts have no power to interfere by habeas corpus with the imprisonment of a person under a judgment of conviction of crime in a State court, if that court had jurisdiction to try the case, and jurisdiction over the person of the accused and did not lose such jurisdiction during the trial. Felts v. Murphy, 201 U. S., 123.

Errors committed in a criminal case by a State court of competent jurisdiction while proceeding under statutes that do not conflict with the United States Constitution can not be reached by habeas corpus. Shibuya Jugiro v. Brush, 140 U. S., 291; Wood v. Brush, 140 U. S., 278.

The insufficiency of an indictment in a State Court to charge a certain crime is not a ground for interference by a writ of habeas corpus from a Federal court. Kohl v. Lehlback, 160 U. S., 293; Howard v. Flemming, 191 U. S., 126.

It is submitted that the District Court of Eeeves County had jurisdiction over the offense and person of the accused and that the writ of habeas corpus is not available.

This court has before it all the record of the court below with the exception of the bills of exception. An inspection of the record discloses that the accused had no grounds of appeal. It is true in the ex parte affidavit of Judge Parker, he states that the court did not permit the introduction in evidence of the marriage certificate of the parents of the accused. He fails to state on what grounds the court excluded it from the evidence. The statement that the certificate offered was the marriage certificate of the parents of the accused is perhaps a conclusion of his. Had he stated the names of the parties mentioned in the certificate, it is likely and doubtless would have shown names different from the names by which the father and mother were known in the community and county in which they lived at the date of the trial. Although he states that the court excluded this alleged marriage certificate, he does not state its date, nor show its materiality. But he alleges what it is as a reason for it's being offered in evidence which was immaterial and irrelevant.”

The relator is remanded to the custody of the sheriff at Eeeves County, and the sheriff of McLennan County is ordered to deliver him to the sheriff of Eeeves County, Texas.

Relator remanded to custody.