Ex Parte Ogden
66 S.W. 1100
Tex. Crim. App.
1902
Check Treatment

Ex PARTE OGDEN.

Court of Criminal Appeals of Texas

March 5, 1902

43 Tex. Crim. 531

before they get out of the court yard they say that the reason we have mob law in this country is because the officers fail to enforce the law. And I want to tell you that it is my opinion that it is the failure of the juries to enforce the law and do their duty that causes mob law, and not the officers. The officers in this case have done their duty, and the evidence shows that the defendant is guilty, and if you turn this defendant loose I don‘t want you to be going around here telling that the officers have not done their duty, and that is the cause of mob law, when it is you.” At the time when said argument was made, counsel for defendant came to the judge, who was writing his charge, and asked the judge to stop the district attorney from making said argument, and to reprimand him, and to orally charge the jury not to consider said argument. The court refused to do this, and defendant excepted to the action of the court, and at the close of the argument presented to the judge a special charge to the same effect. Thereupon the court called the district attorney, and asked him if he used the language contained in said special instructions in the presence of counsel of defendant, and he unequivocally denied it, and gave the language as quoted above as his language; and the same coincided with the court‘s recollection, who refused to give said instruction, because it did not quote the language of the district attorney. We think that the argument used by the district attorney, as given by the court, was improper, and that the court should have given the requested charge; or, if he deemed that not sufficient, that, his attention being directed to the matter, he should have given an adequate charge on the subject.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

EX PARTE E. C. OGDEN.

No. 2405.

Court of Criminal Appeals of Texas

Decided March 5, 1902.

43 Tex. Crim. 531

1.—Pool-Selling on Horse-Races—City Ordinance.

Where the city charter does not authorize the passage of a municipal ordinance inhibiting the selling of pools on horse-races, an ordinance to that effect is invalid.

2.—Same.

The Legislature having licensed the selling of pools on horse-races, it can not delegate authority to a municipal corporation to pass ordinances violative of that law.

From Jefferson County. Original application for discharge, under writ of habeas corpus, from arrest and prosecution for violating city ordinance against selling pools on horse-races.

W. H. Pope and Watts, Chester & Ellison, for relator.

W. R. Blain, W. L. Douglass, and Smith, Crawford & Sonfield, for respondent.

DAVIDSON, PRESIDING JUDGE.—This is an original application for the writ of habeas corpus. Briefly stated, the record shows that relator was charged by complaint with violating a city ordinance of the city of Beaumont; the offense stated being that he permitted the operation of a turf exchange, or selling pools on horse-races, in his place of business. The ordinance under which the case arose provided, in the first section, the punishment against parties who pursued the occupation of turf exchange or selling pools on horse-races. The second section denounced a punishment against any saloon keeper, owner, lessee, proprietor, manager, or person in charge of any saloon, or any owner, tenant, or lessee of any house where spirituous, vinous, or malt liquors are kept or sold, who shall permit any turf exchange, place for selling race pools, or place for exhibiting, reporting, publishing, or announcing such horses, or the progress and results of races, or place for staking money or other thing of value on the purported results of any horse-race, etc. The first section of this ordinance was held invalid in the recent case of

, because the charter of the city of Beaumont did not authorize such ordinance. The Legislature has licensed turf exchanges or the selling of pools on horse-races. It therefore can not delegate authority to a municipal corporation to create or pass ordinances violative of that law, either by repealing or suspending it.
;
;
;
;
; Const., Bill of Rights, art. 1, sec. 28. The second section of the ordinance is dependent upon the first, and, the first being invalid, there is no foundation for the second. The inhibition against the owners, lessees, etc., of saloons is based upon the theory that it is a violation of a valid city ordinance prohibiting turf exchanges; that is, it is a criminal offense against the city ordinance to be engaged in turf exchange or selling pools on horse-races. The second section of the ordinance, as created by the city council, would be equally violative of our statute. This ordinance simply makes it a violation of law to carry on a turf exchange or sell pools on horse-races in the places mentioned. It being a legitimate business,—one legalized by the State,—the city could not, even in this indirect manner, inhibit it. It will be noted that the ordinance in question was not one of regulation, but is one of inhibition. The relator is discharged.

Discharged.

HENDERSON, JUDGE.—I agree to the reversal of the case, because the charter does not authorize the inhibition of pool-selling on horse-races, and no power is given in the charter to regulate the place of such sale by location.