Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1881-04-09

within the knowledge OF tue court, anu
reasons why the jud holding the
court should not preside aC the trial.
The charge was for the burning oil
the Court House, in which were the
records OF the county, all OF which were
destroyed,
THUS AFFECTING EVERY PROPERTY OWNER
in the county, including the Judge.
There was intense feeling against
the prisoner by reason oil
the loss OF these records which was
charged in the affidavit to be in the
knowledge OF the court, and the allega-
tons in the affidavit do not appear To
have been denied.
Further, the prisoner was indicted
July 18th 1869, tried and convicted, and
sentenced TO be hanged during the same
month. An appeal was taken to the
Supreme Court, and judgment OF rever;
sal entered August 30th. A special
term of the Circuit Court was held on
the sth day OF October 1869, and the
prisoner again placed upon his trial,
| again tried, convicted and sentenced TO
be hanged during the same month, and
| Thus TO the commencement OF his trial
in the absence Of his counsel, compelled
| To accept the services OF other counse!
wholly unacquainted with his case.
is THERE NO EVIDENCE OF HASTE?
On the contrary does not the record
| show determination to pass upon the
rights of the prisoner without granting
| him his right TO q iaiT and impartial
trial?
Whilst it would have been better for
the prisoner to have justified his petit
ton with the affidavit of other tesu'
mOny, vet the record does disclose
such facts as in my Judgment entitls
him to change OF venue, and 1t should
| have been granted him.
| think there was error upon the trial,
in the court permitting the witness
| Strrgiss TO pass upon the admissibillty
of his testimony, and permitting the
testimony to 90 to the jury, as set out In
| the third bill OF exceptions.
think there was error upon the trial,
in permitting the evidence to 80 to the
| Jury, as set out in the seventh bill OF
exceptions.
There was manifest error in the ruling
of the court, as set out in the eighth
bill of exceptions, when the court rnIed
that the prisoner was bound to pay the
officer for services in summoning his
witnesses before the service was per-
| formed, unless he was suing as a
pauper. This ruling OF the court was
so UYCoNsTITUTIoNAL.s so UNJUST,
that it is hard to believe that any one Oc.
cupying the position OF Judge could
have committed so grave an error.
The sixth amen lment to the C)nstitn'
ton Of the United States promises that
| SIN all criminal coses the accused shall
| enjoy the right TO a speedy and public
trial by an impartial jury Of the State
| and district wherein the crime shall have
been committed; 10 have compulsory
process for obtaining witnesses in his,
| and To have the assistance OF counsel
| for. his defense"
The same provision was re. enacted In
the bill OF rights in this State, i'll the Sth
| section of article OF the constitution
Of 1868, (the constitution in force at the
time of the trial
Ii will thus be seen that the prisoner
was compelled to 60 to trial in the alb
sence OF counsel, relied on by him; was
compelled 10 accept the service OF coun-
sci not relied on; was compelled to 60
| into trial without his witnesses being
| duly summoned before trial, although
his process had been issued.
am therefore of the opinion that he
had no such tnal as was guaranteed to
him by he
BILL OF RIGHTS OF THIS STATE.
1t further appears from the records
that the prisoner escaped from the
custody Of the jailer of Preston county
prior To the day fixed for this execution,
and that in the year 1879 he was again
restored to the custody OF said jailer,
under a rCquisition OF the Governor OF
this State upon the Governor OF Pennsyl-
vania.
1t appears from the said record that
| an error was made by the Circuit Court
OF Preston county on the Srd OF October,
| 1879, affecting the rights OF the prisoner,
ii not appearing from said record that
| that the prisoner was in court or enabled
| to protect his rights in the premises. |
am of the opinion that this was also an
error. On the 18th day of October, 1879,
the prisoner was again brought before
the Circuit Court OF Preston county and
an order was entered commanding the
sheriff OF Preston county to execute on
the 9th day of February, 1880, the sem
tence OF death under the judgment
OF said court, pronounced on the DIST
of October, 1869, as in such
order directed by law. The prisoner
again filed his petition for a writ of err
ror to the Supreme Court, which was
granted by said Court in December,
1879.
The Supreme Court by its opinion,
filed December, 1850, quashed the writ
OF error because improvidently awarded,
and dismissed his petition, the same
having been barred by the statute OF
limitation, passed 1877.
The Supreme Court in its opinion,
uses the following language: "lf the
statute then existing, properly debars
the granting OF the writ, the writ should
be refused, and the prisoner must
look to
IXECUTIYE CIEMENCY OR LEGISLATIVE IN
PREVENTION
for relief against manifest error.
"And consequently that notw ith-
standing there are manifest errors in
the record, this Court cannot consider
and relieve against them, but must hold
that the writ OF error was improyident.
ly awarded because not petitioned for
within the time required by the stat
ute"
am therefore justified in my view OF
the case by the judgment OF the Su-
preme Court OF this state.
am requested by the Attorney Gen.
eral OF the State, who appeared for the
State in the trial before the Supreme
Court; by petition signed by eight
Senators and twelve members OF the
House Of Delegates from counties in
that portion OF the State ia which Pres
ton county is; by petition signed by
sixteen members OF the Ohio County
Bar, recommending the prisoner for EI.
ecutiye clemency.
There is also a petition signed by
large number OF citizens OF Preston coun.
~, recommending a Communication to
i'm nrisopmapt for life