The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1881-04-09

70 ~ HAuStu uutluk he lAu4S
month and thus 10 the commencement Of
his trial In the absence Of bis counsel com
PEELED 70 accept the services Of other
counsel wholly unacquainted with bis
case. Is there no evidence oil hAste2 On
the contrary does not the record shoW 3
70 pass upon the Itghb Of
the prisoner without granting him bis
right 10 Q fair and impartial tTiAl2 Whilst
it would have been better for the prisoner
to have fortified his position with the atti,
dAvits OF other testimony, yet the record
does disclose such facts as in my opinion
entitled him to change Of venue and II
should have been granted him.
think there was error upon the trial
In the Court permitting the witness SUR
giss to pass upon the admissAblliLY Of his
testimony, and permitting the testimony
to go to the Jury, as set out In the third bill
OF exceptions. / think there was errorup-
on the trial in permitting the evidence to
go to the Jury, IS Get 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, where the Court ruled that
the prisoner was bound 10 pay the officer
for services In Eummoning witnesses be-
fore the service was performed, unless he
was suing as q pauper. This ruling oil the
Court was so Unconstitutional, 30 unjust,
that 1t Is hard to believe that any one oC,
cupying the position OF Q Judge could
have committed go grave an error, The
sixth amendment to the constitution o.
the United States promises that SIN all
criminal cases the accused shall enjoy the
right to q speedy and public trial by an
impartial jury OF the State and district
wherein the crime shall have been COM
mitted; to have compulsory process for
obtaining witnesses in his favor, and ia
have the assistance OF counsel for his
defense"
This same provision was re.ensCtsd in
the bill OF rights 10 this State, IN the SIh
section OF Article 9 Of the Constitution OIL
1868 1.-The Constitution in force at the time
OF the trial,
II will thus be seen that the prisoner
was compelled TO 90 to trial Ia the GbfSnce
OF bis counsel, relied on by himi was
compelled to go into trial without hlG wit
hena6s p6luk dulJ hulAuoueA pplolpN
although his process had been issued,
l am, therefore, OF opinion that be had
no such trial IS was guaranteed to him By
law Of this State, as above cited, Il
further appears from the record that thI
prisoner escaped from the custody Of the
Tailor Of Preston county prior TO the day
fixed for his execution, and that In thl
year 1879 he was again restored 70 thu
custody OF said Tailor, under Q regulation
oil the Governor Of this State upon th'
Governor Of Pennsylvania.
It appears from the said record that 81
error was made by the Circuit Court O.
Preston county on the third day OF 0cto
Der, 1870, affecting the rights Of the pris
oner, 1t not appearing from said recort
that the prisoner was In court, or enabled
to protect his rights In the premises.
am OF the opinion that this was also an OF
ror. On the eleventh day Of October, 1879
the prisoner was again brought before tn
Circuit Court OF Preston county, and Of
order was entered commanding the Sheril
Of Preston county to execute on the sixtl
Of February, 1880, the sentence Of death
under the Judgment OF said Court, pro
nounCed on the 2lst OF October, 1860, as Il
such order directed by law. The ptlSone
again fIed his petition for a writ Of erro
10 the Supreme Court, which was grante,
by said Court, December, 1910. The Su
preme Court, by its opinion, filed Dscem
Der, 1880, qusshed said writ Of error be
cause impTovldently awarded, aud dis
missed his petition, the same having beer
barred by the statute OF Limitation, passe'
1877.
The Supreme Court, in lis opinion, use
the following language:
"It the statute then existing properl.
debars the granting Of the writ, the wri
should be refused, and the prisoner mus
look 10 executive Clemency or leglSlativl
intervention 10 relief against NANTES
error"
"And consequently, that notwlthStand
ing there are manifest errors In the record
this Court cannot consider and relieve
against them, but must hold that the wri
oil error was improvidently awarded be
cause not petitloned for within the tint
required by the statute"
/ am therefore fortified In my view O.
the case by the judgment oil the Supreme
Court Of this State" .
am requested by the Attorney General
OF the State, who appeared for the STATE
In the trial before the Supreme Court, by
the counsel for the prisoner by petition
signed by eight Senators and twelve mem
bers Of the House OF Delegates from
counties In that portion Of the State In
which Preston county Is; by q petition
signed by sixteen members Of the Ohio
County Bar, recommending the prisoner
for executive Clemency.
There Is also petition signed by large
number OF citizens OF Preston county re.
commencing Communication Of bis pun
isment 10 imprisonment OF life. Reliev.
Ing that there are manifest errors Ia the
record, and that the prisoner has not had
such an impartial trial as he was entitled,
10, II would be error to commute hiS pun
ishment 10 imprisonment for life, OF for Q
shorter period. 1.-The was not legally con-
vlcted OF the offence with which he stands
charged he should be relieved entirely
The executive would In my opinion acl
oppressivelY to impose any punishment
upon O prisoner not tried and convicted
according 10 law. II In such q case the
executive is called upon 70 exercise the
pardoning power, It should be exercised
fully, and not afford partial relief by q
Of the punishment.
Its therefore ordered that q pardon do
issue 10 the said Elihu Gregg, relieving
him from punishment imposed by the
Judgment and sentence OF the Court OF