Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1878-12-28

NtNN's
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Cor espondence o the Wheeling Register.
shall not be surprised il the critics con-
slider the purposes OF this article too unimp1r-
,aut TO be brought to the attention Of the leg
islature. admit they are not Of parlmonGt
/ import to the community or TO the conScrip,-
\ fathers, so cal!ed, who, 10 January. vii, take
\ charge Of the States we'Are. But whoever
/ has shared the unpleasant experiences, which
attend felony trials. will not disputc my as
sertion that there are some cobwebS, spun By
| the spider OF the past, which we may sweep
away from our court proceedings, with very
manifest advantage 10 everybody.
thas long been principle Of criminal il-
/ r;sprudcnce t6at jury once sworn, 10 make
'trGe delivereuce" ~ cases where the State and
the accused have Hirei a solemn issue, should
be allowed no communication with any one.
I Indeed this policy Of segregation has been
I considered so important that when not sitting
under the immediate eye Of the court Jurors
/ in a felony trial are placed in the cgsioly Of a
sworn officer, who is forbidden 10 allow them
/ any converse or CORES pondeace with friends
or families. All this may have been very wise
/ in the olden days when uearg every offence
was punished capi,sly. Il was, possibly, =
/ boon TO prisoner in the dock Of the Old
| Bailey thal tue jury selected 10 pass upon the
question Of his lie or death should be guard
ed against any possible control which. power
might exert to ensure his doom. u may, too
/ in the earlier struggles against absolute pow
eIs have been the interest Of the State % keep
| its juries from the growing Influences Of tho'u
brold aud sturdy Ang'o.Slxon ideas which
/ bdve crowned the 10Th century with the glory
Of their development BE this as il may, we
deal with the fact that our statute law has
adopted tue principle without qualification;
and made il the viii, governing every felony
! trial, from the lowest fclonious larceny M %
the bioodiest murder Let NE quote from the
Code, Sec O. Chap. l59
"Afier jury IN 4 case OF felony is impannel-
ed and sworn they shall be kept together and
| furnished with suitable board aud lodging by
the sheriff, or other officers, until they agree
| upon a verdict or are discharged by the court.
The expenses thereof shal be paid by the
sheriff and deducted from toe pc. Item allow
ance of the jurors" A long line Of rulings
by the highest courts have settled the meaning
Of the words kept together and declared
the strictneSs with which a jury must be
guarded from any possibility, even, Of contact
with outside influences.
! am wiling to admit that in any case, in
volying the death penalty or imprisonment ne
life, il may be better to observe this Old rule.
let the twelve men who decide question OF
such moment 20 an accused prisoner, be shield.
ed with anxious prccau,ion against any and
every iu1rence which might Affect their verdict.
And yet an forced TO qualify this admission
Dy doubt whether the roagh bivouac Of
county court room, or the unventi,ated, con.
fortress aud confined limits Of a couniy-scat
tavern are precisely the forces which elevate
the minds Of jurors on the one hand. 10
conception Of their responsibilities 20 society;
or, on the other, aitune their hearts to that
mercy which first besiiates, thea doubts aud
finally acquis.
Oncc upon a time, men were hung that
irrymen might due. We have changed all
that Tne fcrocity Of a starved animal does
not beong 10 the modern juror. lie Is filled
lat bis own cost however, with mine hosts
best pr0vender and 10 this innovation upOn
the ancient rule. some growing conservative
may at,rbnte 10 the large number Of acqut.
tails in felony cases. Bat am drifting from
my point and even now before coming 10 IT,
| must make a preliminary remark. Tho
Grand Juries Of course only have evidence
against tie accused il Is literally ~ pG5fc;
anl as their Office is to accuse. not 10 try, NJ
testimony for the defence is admitted. II their
Indictment, Therefore, upon the one sided
evidence upon watch il rests is l1r felony.
that character belongs 10 IL, wien seat 10 The
bar Of the court Tor tria, up b. tie moment Of
the verdict. In other words, tLc initial charge
controls the character and conduct Of the
prosecution. Thus in a trial Tor grand larceny,
which Is a felony, Il may be shown by tho
main and only witness tot the offence is
simply petty larceny uifiemcanor-and
yet tic case, 10 i's progress and 10 lhe oblisa-
ton 10 keep the jury together has every
attribute of felony clse, Until tie verdict
reduces it 70 the low grade Of misIemeanor.-
Now, the difficulty and inconvenience Of which
complain lie IN The facts that il Is a require.
uent Of law taat the jury must be kept
together aud TIA. q prisoner jr dclenldDp
cannot, under the decisions Of the courts. even
By bis consent, entered o. record waive any
right which tie law organic Or statute secures
10 him. Now 10 the point: ln view Of the
incOr yclcnces, 10 which ! have referred, ]
propose tina; IN the trial of al felJuics under
tie grade Of murder aud arson. by agreement
of tie pr s0Der ard prosecuting attorney. and
the consent Of the court, tie jury may be
permitted 10 separate, as 10 mis- lemcanor
trials This, am SIRE, W secure, 10 all the
cases to which it would apply, more coDsid-
crate, less hurried aud more conscientious
conclusion on the part Of juries. Tne gather
ing shades Of evening, as il now is, often
affect aud determine verd!c;s. Find him
guilty" or "Acquit him." is too often the
conc usion which Is tie result. not Of calm and
honest conviction, bot Of anxiety TO get homo
and escape the hardships Of a nights confre-
ment n charge Of tie sheriff. II the State,
speaking through lis Apo 8tei representative,
and the prisoner be willing to release them.
where is the sense Of keeping jury 10 custody?
Nore that anybody can see or suggest. Con-
sequenily, / woud amend the section have
quoted by adding these words: But 10 all
cares Of felony, except 10 prosecutions Tor
murder and anjn, Il shall be competent for
the attorney prosecuting for the State AMI
the accused 70 consent, by agreement
entered Of record, that the jury shall not be
kept together during the recess Of the sittiDgs
Of the Court as herein required"
A word as to the pay Of Jurors in felony
cases when they are Kept together The
statute was originally, 10 Virginia, that they
should ucsiye their PEI diem, 10 addition %
which tie sheriff was TO provide for their
reasonable board and lodging. Subsequently
land such is our law-tbis provision for their
comfort was charged against their pay. This
Is an unjust discrimination between jurors in
civil aud criminal cases 10 the former they
draw their pei dcA aud 90 free 10 the latter