Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1879-01-04


&c. at~
Correspondence ofihe Wheeling Register
shall not be surprised if the. con-
slider the purposes OF this article too unimpor-
tant 10 be brought 10 the attention Of the lrg-
islature | admit they are not Of paramount
import to the community or 10 the conscrip,-
fathers, so called, who, in January viii lake
charge Of the States welfare. But whoever
has shared the unpleasant experiences, which
attend felony trials, will not dispute my as
sertion that there are ssme cobwebs, spun ty
the spider OF the past, which we may sweep
away from our court proceedings, with very
manifest advantage TO everybody.
1t has long been principle Of criminal ja-
risprudence that a jury once sworn, 10 make
"true dclvercucc" ia cases where the State and
the accused have ;oinel n solemn issue should
be allowed DO communication with any one
Indeed, this policy Of segregation has been
considered so important, that when not sitting
nnacr the immediate eye Of the court Jurors
in felony trial are pleeed 10 the custody Of a
sworn officer, who is forbidden 70 allow them
any converse or correspondence with friends
or families Al this may have been very wise
in the oldcn days when nearly every offence
was punished, oapilally. II was, possibly n
boon TO prisoner in the dock Of the Oll
Bailey that the jury selected TO pass upon the
question Of his HE or death should be guard
ed against any possible control which. power
mia, exert 10 ensure bis doom. IL may, too,
10 the earlier struggles agaius, absolute pow-
ers have been the interest az the State 10 keep
Is uries rom ihe growing iGillcuccs Of those
broad and study AnglO-Saxon ideas which
have crowned the iee,h century with the glory
4 their Development BE this as il may, we
leal with the fact that our statute law has
adopted the principle without qualification;
and made il the will, governing every felony
trial, from the lowest felonious larceny up %
the lioodiest murder. Let me quote from the
! Code, Sec 6, Chap. 100
~ fter jury In case Of felony is impannell-
ed and sworn they shall be kept together and
furnished with suitable board aud lodging by
he sheriff, OF other officers. until they agree
upon a verdict, or are discharged by the court.
The expenses ihereof shall be paid by the
sheriff and deducted from the per diem allow
lncc Of the jurors" A long limo # rulings
| py the highes, courts have settled the meaning
4 the words kept together" and declared
the strclncss with which jury must bo
guarded from sny possibility, even, of contsc!
sith uiside influences.
| am willing u admit that 10 any case, ig-
voyIog the death penalty, or imprisonment idy
| lie, II may be better TO observe lhis old rule
| Let The twelve men who decide question Of
.uch moment to an accused prisoner, be shield
"a with anxious precaution against any aud
every influence which might affect their verdict
! And yet | am forced to qualify this admission
| by doubt whether the rough bivoueo If a
| county court room, or the unveuti.aied, COM
ioriess ard confined limits Of coupty-seei
tavern are precisely the forces which elevate
J The minds Of Jurors on the one hand 10
conceI ton Of their responsibilities to society;
Dr., on the other, attune their hearts 10 that
mercy which first hesitatcs, then doubts aud
finally acquits.
Once upon time, men were hung that
/ iurymen might dine We have changed all
/ that The ferocity Of a starved animal does
not belong to the modern Juror lie Is filed
! lat his own cost, however, with mine hosts
best provender; and 70 this innovation upon
/ the ancient rule. some growing conservative
may attribute TO the large number Of acqui,-
| tails in felony cases But am drifting from
/ my point and even now before comiog 10 h,
/ | must make preliminary remark The
/ Grand Juries OF course only have evidence
/ against the accused il Is literally or pdric
aud as their Office is 10 accuse not 10 try, 10
/ testimony for the defence is admitted. II their
/ indictment, therefore, upon the one sided
evidence upon which il rests. is f1r felony.
/ the character belongs 70 IT, when sent T. ihs
/ bsr Of the court lcr trial, up % the a.0mcnt of
I the verdict. 10 other words The initial charge
controls the character and conduct Of tho
prosecution. Thus To- n trial ior grand larceny,
| which is a felony il may be shown by tho
main and only witness that tho offence IS
/ simply petty larccny-a isdemcanor-aud
/ yet tic case, IN Us progress, and IN the obliga-
/ ton TO keep the jury together, bas every
attribute Of felony case, uatil the verdict
reduces il % The low grade Of msdomeanor-
/ Now, the diilieuliy ani Inconvenience Of which
/ complain, lie 10 ihe facts that il il a require
ment Of law that the jury must be kept
/ together. and that prisoner l1r dcfeniantl
/ cannot under the decisions u ,he courts, even
/ by his conse {, entered Of record, waive any
/ right which the law, organic or statute, secures
/ 10 him. Now % the point 10 view of tho
/ incouveuiences 70 which ] have referred, /
propose that in the trial Of all fe1nies, under
\ the grade Of murder and arsoa by agreement
| u the prisoner AMI prosecuting attorney, aud
/ the consent Of the court, the jury may be
permitted 10 separate, as 10 mislemeanor
/ trials. This, ] am sure, will secure, IN all the
cases to which 1t would apply, a more consil-
crate less hurried and more conscientious
conclusion on the part Of jgfics. The gather
/ ing shades Of evening, as it now is, often
affect and determine yerdicts. Find BIN
guilty" or "Acquit him." IS TOO often the
/ conclusion which Is the result, not of calm and
/ honest conviction, bni Il anxiety 10 get home
and escape the hard-hips of a nights conire-
ment in charge Of the sheriff II tho State,
speaking through It's appointed representative,
I aud the prisoner be willing 70 release them.
where is the sense Of keeping jury 10 custody
1 NOre that anybody can see OF suggest. Con-
/ sequeutly, ! would amend the section haze
quoted by adding these words: But IN all
cases Of felony, except in prosecutions for
murder and arson, il shall be compeient for
/ the attorney prosecuting Dr the State AMI
/ the accused 20 consent, by agreement
entered Of record, that the jury shall DO, be
kept together during the recess II the siitings
/ Of the Court, as herein required
Il word as 70 the pay Of Jurors in felony
cases when they are kept together Tie
statute was originally, in Virgins, ths! they
should receive their per diem, IN addition u
which tie sheriff was 20 provide for their
reasonable board and lodging. Subsequently,
and such Is our law-this provision for their
comfort was charged agains, their pay. Phis
I is an units, discrimination between Jurors in
/ civil and criminal cases 10 the former they
draw their per diem aud 60 free; 10 the latter