Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-04-02
Graves and POstOn Sentenced TO Die,
BY Hanging, on the 26th Of
Nay next.
An Unusual and very Affecting Scene
in the Criminal Court.
Judge FIppin Addresses POstOn as
an Old SGhoOlfsIIOW and
Playmate.
Full Report Of the Decision Of the
Court upon a Motion for a
New Trial.
The Motion 0VsrruIsd - Sentence
peIiVsrsd-SpesGh Of Judge
Fllppi'.

A very considerable number of people
assembled in the Criminal Courtroom
yesterday, as il was expected Judge
FlippIn would deliver his opinion on the
motion for q new trial in the Graves anC
POstOn case, The Court opened at nine
o'clock. The prisoners were already there
Immediately after the opening of the
Court, Judge Fippin rendered the fol
lowing
DECISION ON THE NOTION FOR "A NEW
TRIAL
State Of Tennessee VS.. Frank Graves and
Samuel h. Posten--Criminsl Court OF
Shelby county, January term, 1871.
Motion for a new trial
These defendants have been convicted
ct the present term of murder in the first
degree, with a recommendation to the
extreme mercy of the Court" Various
grounds are assigned for a new trial. We
will notice them in detail
THE GROUNDS.
1. That one OF the jurors was not a
householder or f~reehOlder.
There was an abandonment of this
/ ground and so announced by defendants
counsel after its assignment IS error.
2 That the jury we're in charge of IN
sworn, or improperly sworn, officers dur
ing a great portion of the time, and that
some OF these officers we're minors, and
while in their keeping the jury held such
communications with third parties as to
Vitists their verdict.
THE TESTIMONY
taken pending this motion shows the jury
we're in charge during the trial of Deputy
Sherifis Frame, Tsggsrt, Stewart, Powell
and Smith, the two latter not having
quite reached their majority. Al no time
we're there less than two officers in charge,
and each having been sworn as regular
deputies Of the Sheriff and specially as
signed to duty in the Criminal Court dur
ing the progress of this trial. The testi-
mOny is clear that while some of these
officers may have been sworn specially to
take charge of the jury, others were not
so sworn, and the question is suggested,
is this such an irregulsrity as to avoid
their vsrdict2 Upon g motion Of this kind
in a collateral proceeding, il must at once
be manifest that we cannOt inquire into
the
QUALIFICATIONS OF OFFICERS
whether or not they possess all the pre-
scribsd statutory requirements. Let US,
then, take it tor granted that they we're
only sworn to perform the duties Of Dep
city Sheritts, and not specially to keep in
charge the jury in this case, Why are
officers sworn at all in such cases2 Is not
the msin object, If not the only one, to
prevent any influences, except those flow
ing from the law and proof in the cases,
from operating upon the minds of the iU-
rOrs? IT. then, il is shown that they we're
in charge of a sworn officer, and il further
appears that no improper influences
reached them, are they not in as good a
condition TO render
AFFAIR AMI IMPARTIAL VERDICT
as if an officer had taken a special oath to
keep them during the trisl2 If an impair
tial verdict has been reached the end of
the law has been attained.
1t is held in Ohio that when the Jury re-
tire in charge of a sworn officer OF the
court, there need not be administered TO
the officer any special oath whatever. Says
Mr.. Justice Read in Davis vs.. The State,
Is Ohio, p: "One of the objects in admin
istering b special oath 10 officers hay
ing charge Of juries, in ancient times, sp-
p8ared to be TO secure an observance of
senssless and harsh measures
which looked oftentimes to the cOmDell-
ment Of q verdict by physical suffering,
than a conviction Of reason, which
both officer and Jury were disposed TO dis
That has passed away, and with
it the mean resOrted to to enforce IT," If
the jury go out in Mississippi in charge
OF an officer, the verdict will not
be set aside if it at1rmatively appear that
we're In no way affected thereby. /
.McCann VS.. the State, 8 3 IN and NJ
i65.) But it has been
DECIDED IN THIS STATE
That where the sworn constable left the
DRY in charge Of the sheriff or deputy
,herih, il appearing that their officers
lid not speak to them about the trial,
hat for this cause a new trial will not be
,rRnted. (Stone vs. State 4 Hump, ~
- 80 - aruv aaua rruann rcngnm aud M /
.hink upon sBthOrity that If it GBirHG-
iUely appears no injury was, or could
rave been lone b prisoner, it matters
lot what officer may have had the jury
u charge. 1t is ~conclusively shown in
case by all the officers that they diu
lot speak to the jurors or permit Others
o speak to them about the case, and their
tatements are confirmed in every par
ocular by every juror who has been
worn upon this motion.
THE TESTIMONY CERTAINLY SHOWS
hat no set fomcers were ever more dis
and wstchful, and no set Of jurors
7ere ever guilty Of fewer improprieties.
he motion then upon this ground cannot
@ sustained.
3. That one Of the
WAS PROHIBITED FRoM SPEAK
ING
d the case.
This is claimed as q violation of sec. 9,
ut. 1 Of the Constitution of the State, {
.hich says that in all criminal prOsecu-
Ons the accused hath a right TO be heard
y himself and counsel. While It Is un-
oubtsdly true that the accused hath q
ght to be heard by counsel, it is equally &
1viOus that there must be some limit to +
le number, if not to the length Of the !
idresses. II such we're not the case, a :
.illionsire in q ,
DESPERATE EXTREMITY q
light postpone almost indefinitely, If not C
-aetically defeat justice by the very null ?
tude of his counsel. Really, while each ,
has a right to be heard by /
.unsel, what right has one more thar n
lother to have consumed a greater time o
the argument Of his csuse2 The Su- 9
'eme Court of California has decided that Il
o Court has power 10 limit the argument q
a reasonable time. people VS.. keenan,, d
Cal. 5sI.) Ig has also been decided that Il
URT has A sUPERTNTENDIEG CONTROL
or the course Of the argument to pre- y
ct the abuse of this or any other right y
counsel. q Leigh, 743, Lynch vs.. State, "
54l) But in Chambers VS.. State, &c
HUmph. 24D Judge Turloy says: The -
peaTanc Of more than one attorney on "
sh side Of q case is a matter within the ~
Icreti0n Of the Court. Every man has a ~
int 70 be heard by attorney, bat not by u
than one, unless by permission, and ~
efugal is no cause OF error, tor which ~
can be reversed" This would ~
decisive Of the matter. In this case H p
.EEE ATTORNEYS ADDRESSED THE JURY,
assuming in their arguments nearly If a.,
n hours, and II was repeatedly an =
unced by one Of them that he was tray- y
ng over the identical ground, which, by ~
.Yato agreement, had been assigned t. ~
3 absent counsel, who did not appear to ~
SAX until after the counsel for defend ~
Is had announced that the defense had u
BIZ concluded. II is here unnecessary On
relOr IN detail 70 the facts influencing ~ =,
3 action Of the Court In the matter: ~
5se are embodied in ths statement fled sI
ID the papers in the cause. WI
THE CONDUCT OF THE COUNSEL ~,
sight Of in the vital inquiry ware be
the defendants have bean in Th
enced by the action OF the Cent an
rec speeches had already been made and Ten
grounds Of defense upon the law and
had been presented with DOW
zeal seldom witnessed. 10 was said
{ the defense had finished. Aftertbat an
the Court under any legal obligation y
counsel or TO the defendants 20 hear ~
further in their behalf, In view ~
he opinion Of Judge TUrlay, already
,rred 10, that when the defendant has lne
n heard by one attorney the constitu-
lal requirement. has been fulfilled. II !.
ere Otherwise that an attorney might ~
he in II any time his mi
FANCY OR CAPRICE oVt
int suggest and claim the privilege of pre-
ressing the fary, then would not tus
nsel control She Court, rather than the
Court the connsel2 There must be sen
over lodged somewhere, aud where pro
3 IN the court, to supervise even this gen
stitutionRl right Of being heard by
nsel, 80 as 70 prevent its abuse, by
ting 70 q reasonable extent the num- y 7
of tho Ennakerr and the lar@fb ~ fba ~ 2