West Virginia freeman. (Parkersburg, W. Va.) 1881-1886, 1881-05-04

plea of not guilty was entered. IL Is
to be observed that up to the time
the prisoner entered the plea OF not
guilty,upon which he was twice tired
in the tribunals of the State and con,
victed, neither of the pleas now OF
fered and relied on by him were ten
dered. The State now objects to the
receiving of the pleas after the plea
of not guilty and issue, that these
pleas are offered too late; that after
the prisoner had rendered his plea
of not guilty, and submitted his case
to Jury of the country, relying ON
the merits of his case, he must be
held to the election he had made.
In support of her position the
State insisted as to the first
plea, that the proper time to
have offered the plea, was soon after
the indictment was returned by
the grand jury; and that, as to the
question raised by the second plea,
when the grand jury was convened,
and before it had been sworn, the
prisoner should have challenged the
array The prisoner was under re-
cognizance to answer an indictment
before that grand jury, and he had
the opportunity to challenge the ar
ray upon the ground set forth in his
second plea, but he did not avail him
self of it. | confess that | have had
great doubts as to whether these
pleas are not too late. At common
law, such a question as is presented
by the second plea could only be
raised by a challege to the array, and
the Courts of some of the States have
adhered to the same doctrine. In the
case of Huling VS.. The State of Ohio,
the Court held that irregularities in
selecting a grand jury must be taken
advantage of, if at all, by challenge
for cause, and cannot be pleaded In
Abatement This case and others
that | have seen, seem to sustain the
position of the State. have been
unable to find any decision of the
Federal tribunals that thrcws any
light upon this question. l am in
clined, however, to differ with those
Courts who have held this doctrine.
No citizen who is charged with an
offense against the law, and who may
be by the judgment of a Court de
prived of lite or liberty, should be de-
prived of any right during the trial,
at any stage of the cause. SO jeal
GUS have the Courts been in guard
ing and protecting the rights of the
citizen, that some of them have held
that during the progress of the trial
a prisoner cannot waive any right he
has under the law And such | un-
derstand to be the rule of law in
number of the States. He can con-
TESS his guilt at any time prior to his
conviction, but he cannot waive any
right before conviction or confession
OF guilt, which would result to his
prejudice If the prisoner is not per-
mitted by the Courts of the country
to waive right which might tend
to prejudice his case, and possibly
produce conviction, why should he not
be permitted to avail himself of a de-
tense at any stage of the case, which
II offered at the proper time would
result in his acquittal7 1t seems to
me that the bare statement of the
proposition is the best answer to the
position of the State. The objection
is technical and not substantial, and
should not be allowed to prevail as
against the life or liberty of the citi-
zen. We are not inclined to deprive
the citizen of anyright he might here
assert in so grave a charge for the
reason he did not avail himself of it
at the proper time. The Supreme
Court of the United States in this
very case has decided that the pris-
oner was improperly indicted, for the
reason that the statute of West Vir
glnla Disseminated against him, and
thereby he was deprived of those
rights conferred by the amendments
to the Constitution of the United
States. The second plea raises this
question, and upon this objection, as
well as upon the demurrer, it is con
coded to be true. If true it is but
just to give the prisoner the benefit
OF 1t, and to admit it at any stage of
the case, which we are inclined to do
But II we had any doubt as to the