The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1877-11-19

State of West Virginia, Plaintiff and De
fsnda,.t "a Error, Us. Taylor StrdudeT,
Defendant and Plaintiff IN Error. de-
cided Noe. In, 1877.
SYLLABUS.
l. Taylor Strsuder was 'ndlcteu ior
murder in the Circuit Court OF ONO
county, on the 10Th day OF May, 1917
within one month after he was arrested.
The cause was continued several times
upon his motion, but never on the mo
ton of the State. he was tried ana con
victed at the July Term, 1878; he then
snnIied for and obtained writ OF error
to the supreme Court Of Appeals
On the both day OF July,
1874, they reversed the Judgment
OF the Circuit Court, sentencing nun 70
he hanged. because the Circuit Court mad
refused to remand him to the County
Court for examination. On the ZOtn day
OF October, 1874, new Indictment was
found against him, on which the state
elected to try him, and thereupon tne
prisoner moved the court to discharge
him trom custody, three terms having
elapsed since he was in custody, upon the
D,ittinsus of the Justice, isued on April
18th, 1872. Held. the Circuit Court
nroperly overruled this motion.
3 A prisoner is not entitled 10 have 8
case removed into the United States Cir-
cuit Court for trial upon his petition sup
ported by affidavit setting orth that ne
!. a colored man, and that such preJu-
djces exist in the State against his race
tnst he cannot get justice IN the State
Courts, snd that also by law OF the
Safe only white men can get upon the
jury.
3. In this State there are two modes
of obtaining iuries for the trial OF iel-
onies. One under the Sd section OF
chapter AZ of the acts OF 1928, ana the
other under the 9th and succeeding
section of said act. Ii the record shows
thst the Jury was summoned In the
second of these modes this court Will
not reverse q Judgment of the Circuit
Court refusing to quash the Uen're Jac'aS
or the panel OF the jury because 1t does
not appear that ali the provisions OF the
statute, other than those to be performed
Dy the Circuit Court and its officers
have been complied with.
4, Upon the trial of a prisoner charged
with murder, sitter tie jury has been ex,
amined or their Uoir DIRE, accepted and
sworn, and after considerable testimony
had been taken, the counsel for the prls'
oaer placed in the hards of the Jus &c or
the bench privately 81 affidavit OF per-
son, that he had heard one OF the Jurors
s4y some three months before that the
prisoner ought to be hanged, and slsc
affidavit OF the prisoner and his counse
that they had just learned that the juror
had expressed IN opinion, or that he nae
any bias agasnst the prisoner, but neither
the prisoner nor his counsel made any
motion based on SAID affidavit, o.
does it appear that the attorney iol
the State had any knowledge o
the existeCce OF these atidavlts, or o
their being hauled - the Judge, TN
court took no action upon them, snt
after the prisoner had been found guilt!
bv the Jury the prisoner moved Tor
new trial because this juror served OF
the Jury, and theceupon the juror made
his affidavit, positively denying that h'
expressed such opinion to the party Wh'
III .Ie the affidavit or TO any one else, o.
TIA. he entertained any prejudice or bis
,>,ainst the prisoner, and as 1t does moi
appear that the prisoner suffered H.
iIstice by reason of this Juror serving or
the Jury the court below refused TO gran
the new trial This court will not re
verse such decision.
5. The Court below properly rejected
the following Instruction: al the jury
entertain u rational doubt as TO TIT
soundness of mind of the prisoner at tn,
time of the commission of the homicld,
charged, be is entitled TO the benefit q
the doubt, as he would be to the 0eneh
at doubt as to any other material lac
in the case, it being under our statute
necessary ingredient OF the otense ina
the person charged shall, ut the time OF
the commission of the otfense, be OF sounC
mind. Although the jury may behev'
he had Judgment and reason sIthclen
to discriminate between right and wrong
in tuc ordinary affairs Of life, even at tue
time of the commission OF the ofense
they caunot find him guilty and prop
erly gave the following in lieu thereof
20 ertItle the prisoner 10 AN scqultta
upon the ground that he was insane q
the time OF the commission OF the obens'
charged in the indictment, such insanity
must be proved to the satisfaction OF tn
jury, though in passing upon this ques
ilon they may look at the whole evidence
in the case, Ms well that for the State q
for the prisoner