West Virginia argus. [volume] (Kingwood, W. Va.) 1877-1946, 1881-04-16

able 10 employ counsel, the court had
assigned Mr.. Showalter II was known
to the court that Mr. SHOVE ter was E0t
resident of the county at the tims he
was 50 assigned. The term was
EDecial term The prisoner did not
expect that his case would be tried at
special term neither did his counsel
Tao prisoner exhibited letter 10 the
Court from Mr.. Showaltsr, informing him
that he intended 10
''sER HIM THROUGH"
and that his case would not be tried a.
that term, and that he (Showalter) would
not be in attendance. The affidavit OF
the prisoner filed, together with this let
ter, made n clear case of continuance.
Showalter had once tried the case, was
familiar with all the evidence, had been
appointed by the Court TO defend him, and
had accepted by entering upon the dc
tense. The prisoner had put him in pos
session OF his whole case He swore thu,
he could not safely 60 to trial in his ab
sence. lie was not absent by his procure
ment or consent, and he was unable TO
employ other counsel. his case for
continuance was mplete, and it was
certainly grave error not TO have granted
the continuance. The prisoner was not
able to have his case tried in q fair ana
impartial manner, and his constitutional
right to such trial was refused him
The second bill Of exceptions was Ia
ken TO the refusal OF the court to change
the venue, for the reasons set forth i'm the
previous petition.
II lie true that the mere sli iavii OF
prisoner of his fears or beliefs that be
cannot obtain fair trial in the county is
not sufficient 10 sustain his motion unac
companied by independent and dieiutcr-
estod testimony, showing that it is proba-
bic that his fears and beliefs are well
founded. The affidavit brought homo To-
the court full knowledge of the grounds
of the prisoners fears and beliefs. It
vent further and stated facts within the
knowledge of the court, aud reasons why
the judge holding the court should rot
preside at tho trial.
The charge was for the burning Of the
Court House, in which were the records
of the county, all of which were des-
troyed,
THUS AFFECTING EVERY PROPERTY OWNER
in the county, including the Judge.
There was intense feeling against the
prisoner by reason of the loss OF these
records which was charged in the Ell
dayii TO be in the knowledge of the court.
and the allegations in the affidavit do not
appear TO haYo been denied.
Further, the prisoner was indicted July
18Th 1869, tried and convicted, and sen
fenced to be hanged during the same
month. An appeal was taken to the SD
preme Court, and judgment OF reversal
entered August 30.h. special term of
the Circuit Court was held on the 8 h day
OF October 1859, and the prisoner again
| placed upon bis trial, again trisd con
victcd and sentenced to be hanged during
the same month, and Illus Ia the com
msnc, ment Of his Trial i'm the absence OF
his council, compelled to accept the ser
vices of other unset wholly unacquaiuted
VITA his case.
Is THERE no EVIDENCE or HASTE?
On the contrary docs not the record
/ snow a determination to pass upon the
rights of the prisoner without granting
him his right TO fair ana impartial Trial {?
Whilst it would have been better for
the prs oner to have justified his petition
with the fiilaVit of other testimony. vet
the record does disclose such facts as IN
my judgment entille MIN To change
of venue, and 1t should nave been granted
HIM.
l think there wac error upon the trinl.
in the couri permitting the witness Stur-
giss TO pass upon the admissibllty of his
testimony, and permitting the testimony
to 20 to The jury, as set cut in the third
bill Of exceptions.
think there was error upon the trial.
III permitting the evidence to 90 t. the
Jury, as set out in the seventh bill Of ex
ceptious.
There was manifest error In the ruling
Of tho court, a. set out in the eighth bill
of exceptions. when the court ruled that
the prisoner was bound to pay the officer
for services in summoning his witnesses
before tho service was performed. un-
less he was suing as a paupcr. This rul,
ing Of the court was
50 UNCONSTITUTIONAL, so UNJUST,
tnat it is hard to bclisve that any one oc-
cupying the position of Judge could
have committed so grave an error.
The sixth amendment 10 the Coustitu~
ton of the United states promises that
In all criminal casos the accused shall
enjoy The right to speedy and public
trial by an impartial jury Of tho state
and district wherin the crime shall have
been committed TO have compulsory
process for obtaining witnesses i'm his
behalf and t. have the assistance or
counsel. for his dolyuso."
The same provision was re-onactcd i'm
the bill! Of rights ion this State, ian the sth
section Of article Of the constitution OF
1869, uhe constitution i'm force at tho time
Of tho trial
IL will thus be seen that tho pr sonor
was compelled % go TO trial ia the alb
sence Of counsel, relied on by BIN was
compelled TO accept tho service Of coun-
sel not relied ON was compelled to 60
into trial without his witnesses being
duly summoned before trial. although