The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-02-17
la W LNTELLIGENCE.

CR1MINAL CoURT-fon. Henry Stump, Judge
Milton Whitney, Esq, States Attorney, prosecuting
On the opening of the Court Yesterday morning
Judge Stump proceeded to give his opinion upon
the motions for new trial and in arrest of judg
ment, (Which had been argued on the day previ-
ous) in the case of Henry Duvall convicted of the
murder of Christian Fischer.
The Judge commenced by saying, that the Court
had fully considered the questions involved both
in the motion for trial and in arrest of Judg-
ment, and thought that the reasons urged and ar
guments advanced by the counsel, would equally
apply to either motion. The Court had also con-
| sdered the law bearing upon the issue, and exam
ined carefully the Acts of Assembly referred to by
the counsel in the argument before the Court.
1t was urged by the counsel in arguing for the
motion, that some of the jurors were Incompetent
to serve because of the time for which they were
summoned having already expired, and the Act of
Assembly of 1919 ch 81 was referred to- in support
of this objection. At the time the Jury were en-
panneled, this objection was made and argued be-
fore the Court; The Court put the construc-
tlon upon the Act then, as it does now, which was
that the three weeks for which the Jurors were
summoned (as related in the act) signifies TIVE nty
one working days, and the Court therefor de-
cided that the juror Frick was competent to serve
upon the panel.
AS to the allegation, that the verdict was against
the law, and therefore the verdict should be set
aside and new trial granted; the Court would say
that it had no right or power in this case to set
aside the verdict of the jury. The Court will see
that man has fair trial. but it is a rule of law in
this State that there is appeal from the verdict
OF the jury. This Court will not break down any
principle of law for the purpose of granting a new
trial, if it thinks that the man had fair and i'm
| partial trial.
1t is fixed principle that there is no appeal from
the verdict OF the jury in this State and in many
other States of this Union. The Court will
| take this fundamental principle.
The new Constitution says hatthe jury shall be
the judges of the law and the facts before its adop
| ton, however, the Court allowed to instruct
the jury upon the law of the case, and the presump
hot h,,t tha
opinion of the Court; even then however there was
no appeal from the verdict of the jury, but there
was an appeal from the ruling of the Court. Now,
the new Constitution, making the jury the judges
of the law and facts, this appeal is taken away be-
cause the jury hearing the testimony, and hearing
the law explained from counsel, have the right to
apply it. The Court wanted this case argued be-
fore the jury, which, if it had been done would har
prevented all this argument here, which properly
should have been presented to the jury. This
| Court legally cannot break down this verdict.
The Appeal Court could not say this verdict was
wrong, because they do not hear the evidence, nor
do they see the witnesses the jury do, and cannot
| judge of their credbility from their manner, ap-
pearance and mode ofdevery of testimony as the
| jury The Court could give this man new
trial, but the Court must be cautious, t does not
mean cautious of public opinion) but cautious that
it breaks down no settled principle of law. In
| many cases the Court can break the verdict of a
| jury; for instance if man is indicted for man
slaughter and the jury fine him guilty of murder in
the first degree, the Court could set aside the ver
dict, if he indicted for an assault with intent
to kill and the jury found verdict of murder
| in the first degree, then the Court could break
down the verdict but here the jury after hearing
the evidence have brought in a verdict in accord
ance with the Indictment and the Court cannot SET
it aside. As to the point of impeachng some o
the witnesses in the case, the Court has nothing
do; the jury are the judges of the credibility of
witnesses, the law leaves it entirely to them.
Another reason assigned for new trial, was that
the verdict was against the weight of evidence
Suppose the jury dscredit the witnesses, the Court
can't undertake to upset the verdict that ground
the jury hear the evidence and see the witnesses
and it is left to them to decide whether they are tC
be believed not; the Court has nothing to dc
with that.
Another reason urged for the granting of
new trial, was that there had been newly discovered
evidence which would go to show that the prisoner
was innocent of the charge against him. If ther,
any evidence to be brought forward
it might be ground for a new trial, bu
the affidavit filed here, says that this absent wtnes
will prove that the prisoner not in the house
and the Court thinks this only cumulative testimony
Two or three witnesses testified to this on the tra
and the jury did not believe them; the Court coul,
not grant new trial upon cumulative testimony
Was there due diligence exercised in procuring
this testimony the man White summoned il
Lemons and returned est, and yet the pris
oner ventured to go to trial, when he must hav
known of this witness. Why the jury believe
! those who swore to Duvall being inside the hous
l and disbelieved those who swore that he out
side it is not the province of the Conrt to enquire
the jury have the right to determine about tha
themselves. The Court sees nothing in the argr
3 ments advanced upon which new trial should b
$ granted.
The Judge then reviewed the Act of Assembly {
g 1909, defining the grades of murder, and explaine
: the legal meaning of the word malice and therein
. as distinguished from the popular meaning.
said that legal malice did not imply simply that