The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-07-11
A FINAL BILL OF EXCEPTIONS.
THE SENTENCE OF DEATH.
Day of Execution.


every part on yesterday, in expectation OF
the sentence Of death to be pronounced
upon the man adjudged guilty Of the
murder of his wife. The prisoner was in
his usual seat, and there was no perccptlblc
change in his demeanor.
| Judge Crump submitted his motion for
new trial, and rendered the annexed attl-
daVit of A. 3. Guigon, Esq, one of the pri-
soner's counsel, in support thereof:
AFFIDAVIT OF MR.. GUIGoN.
On the morning Of the 4th Of July,
about 10 o'clock, l called, at the Exchange
Hotel, upon Judge Christian, and found
him in the back portico Of the hotel in
conversation with Thomas A. Waters, the
foreman of the jury for the trial of James
Jeter Phillips. There were other per-
sons sitting about on the portico, it being a
place frequentcd in the morning by the
guests and visitors of the hotel. Just as
| addressed the Judge he rose from his seat,
and the Juror did the same. When l had
spoken to both of them, the Judge request
ed me to be seated that he was going to
take Mr.. Waters to the jury-room, which
is in the rear of the building, some fifty
yards from that portion of the portico
where the Judge and juror were sitting,
and not in sight. There was no sheriff
present. Upon the return Of Judge Chris
| tian he remarked to me that one OF the
sheritfs was in the jury-room with por-
ton of the jury; that another sheriff had
gone out with another portion of the jury,
and there being no other sheriff, he had al
| lowed Mr.. Waters to remain with himself
upon the portico, where it was cool-the
jury-room being q hot place.
A. B. GU1GoN.
Sworn to in open court by the afiant, A.
B. Guigon, this 10th day of July, 1868.
TEMPLE ELLE1~*, Clerk.
Colonel Young submitted, on behalf Of
| the Commonwealth, the following
AFFIDAVIT OF T. A. WATERS.
On the morning of the 4th instant (July)
Judge Christian called at the jury-room to
inquire about juror who was attacked by
illness in court, perhaps the day before.
The excessive heat had produced sick
headache, of which | complained to the
Judge, and asked permission to sit in the
open air on the porch. Permission was
readily granted, and proceeded, in charge
of Mr.. John Smith, one of the sheriifs, 20
the back porch Of the hotel. Whilst sitting
there with him, Judge Christian took q
chair rear to us. A short time after, por-
ton of the jury came with Mr.. William NJ.
| Magrudcr, another of the officers, who,
being lame, requested said Smith to take
charge of those who desired to take walk.
and returned to the .lury-room, followed by
the Judge and myself, with whom | was
conyersing at the time, not, however, IN
relation to the trial. Nor have | ever heard
him speak word concerning the trial or
of any person or thing connected with 1t eZ-
ccpt from the bench, and once in reply to
an observation of mine in regard to the ar
gument made by the counsel to the court
that morning, when Judge Christian re-
marked: "Judge Crump made line
speech" Not more than from three
to five minutes elapsed, according 10
my recollection, between the time when
Magruder passed back to the jury-room and
the time of my return to the jury-room with
the Judge. had no conversation with any
person except with the Judge or the sheriff
while | remained OH the portico, and such
conversation WIS upon subjects wholly
foreign anu unconnccted with this locality,
and wholly unconnected with the trial Of
| Phillips, it being concerning matters which
transpired in Alexandria, my place of resi-
dence; nor was out Of the presence of
one or the other Of the sheritfs for o mo-
ment, except during the brief period above
stated during all which time was in the
presence of the Judge, as above stated.
THOMAS A. WATERS.
Sworn to by the affiant, Thomas A.
Waters, in open court, this 10th day Of
July, 1868. TEMPLE ELLETT, Clerk.
Colonel Young introduced High Sheriff
Smith and Deputy Sheriff's Magruder and
Smith, who testified as to the occurrences
detailed in the preceding allldavits.
| The Court inquired whether the defence
would move to set aside the verdict on any
other ground than that stated in the atfida-
Wits.
| Judge Crump said they did not, and after
some further parley commenced the argu-
ment on his motion, prefacing it with tes-
timonial, which it gave him pleasure to
bear, to the efforts of the Court to keep the
| Jury to themselves. The ground of the mo-
| ton, he id was that no other officer Of the
court tn tn the sheriff could take charge Of
| the iury-not even the Judge himself. He
quoted 1st Pickering, Mass, P. 1886, to
prove the point that if there was any COM
| munication with q juror by anybody but
the officer having him in charge the ac-
cused was entitled TO q new trial. There
was no more power belonging to the Judge
| out Of court than to any other person. he
was aware that the point made was purely
technical, but believed the position which
| ne had taken tenable.
Colonel Young thought that the argument
| of the defence on this motion stood upon
narrow neck of land which had been washed
over by all the sets of practice. There wos
here no practical separation of the officer
from the Juror, and if the time had been
longer, he could not hold with the learned
| counsel on the other side that the Judge has
no authority over the jury after the ad-
| iournment of the court. He quoted IN
stances in which the Judge had received
and answered notes from jurors concerning
the trial, the propriety Of their discharge,
etc. 1t would be more improper for the
Judge than for anybody else to advise with
the Jury about their deliberations, but he
certainly had right to do anything to pro-
mote their comfort and convenience. :,
Judge Crump, in his rejoinder, quoted
the case Of Mccall, where q sheriff had
taken juror home to see o sick member
| of his family, and had remained down stairs
few moments while the juror was in the
sick-room. 1t was held to be O separation,
and q new trial was ordered. lie also
quoted the cases of Towles, Thompson, and
Wormeley in support Of the views advanced:
In neither Of these cases was it established
that there had been any tampering with
the jurors, but the principle that there
should be no separation whatever was held