J. S. Hogg Atty. Gen., and R. H. Harrison, Asst. Atty. Gen., for the state.

J. Randolph Burns and A. H. Garland, opposed.

The writ of error in this case was dismissed January 12, 1891. Cald well v. Texas, 137 U.S. 692, 11 Sup. Ct. Rep. 224. Plaintiff in error applied for a rehearing upon the ground that no notice had been given of the motion to dismiss. The record here showed that a motion to advance and a motion to dismiss were submitted on December 15, 1890, and the order in relation to the latter motion stated that it was submitted on the record and printed arguments of counsel for both parties. An extended printed argument on the merits had been previously filed on behalf of plaintiff in error, as well as the written consent of his counsel that the cause might be advanced, but from the This was accordingly done, but for rehearing it appeared that through some inadvertence the notice of the motion to dismiss had not in fact been given. We therefore directed the judgment to be vacated and notice to be served, returnable on the second Monday in April, the motion to be then considered upon such additional printed briefs as might be presented. This was accordingly done, bot no further briefs were filed, and on April 14th suggestion of illness of counsel was made, and the time twice enlarged. On the 11th of May the case was taken on resubmission; and a request having been made that the cause be continued to next term, or that other counsel be assigned to represent plaintiff in error, other counsel has examined the record and filed an additional brief.

Mr. Augustus H. Garland, at the request of the court, prepared and filed the following brief on behalf of the plaintiff in error.

[Argument of Counsel from pages 210-211 intentionally omitted]

FULLER, C. J.