Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1885-10-16
VII.
ERRORS N THE RECORD.

After the motion for q new trial was
oyerruled by the Court the accused
moved II arrest Of judgment. Says the
petition
Ii j. insisted that the record contains
nc sufficient verdict. if indeed 1t con-
taius any verdict al all. On page sc
Of the record the proceedings OF the sth
Of June VII appear. The proceedings
are twelve line, long. They show that
the prisoner was brought into court,
and the Jury
having iuly heard the arguments of conn
Sc. uYOl treir paths do say thai the SAL
Thomas J. liuterlu- D. guilty Oi murder
thrfr degree g. charged iu the Indlcl-
utnt. And tleTruron tine said Thomas j.
CiEf erlu, vas reuauCel 90 JaA.
his j. but narrative.
There Il no mention of & verdict be-
ing rendered. The word verdict does
not occur ID the proceedings. For all
that appears the Jury may have been
then sworn IL open court. for the recital
IS upon their oaihs 10 say Il Is be-
heyed that no precedent can he found
for the omission 10 state N the record
the fact that a verdict l. H0mHe wa
rendered.
Bu, i this i verdict, 1t is defective
II this i finds murder IN the first de-
gree a. charged n the Indictment. "
Murder II the first degree Is no, charged
II the indictment. There is no charge
Of vilful. deliberate. and premeiitated
murder. which Is the only kind Of mur-
der II the frs, degree. Since the deci-
SION II Livingston case a Grat. j3-
it Is Lawful o. frame the Indictment
according 10 the common-law form
murder with malice aforethought.
This indictment will authorize Jury.
according 70 the proofs. TO find either
murder II the first or II the second de-
gree. but that is for the jury a. deter
mine bv their verdict; The indictment
may be framed a. for murder II the
first degree. and when that is done a
verdict according O. the indictment, ID
the language usel here. would be pro-
per. See Thornton Com. - Grat.,
65-. where Moncure. F.. said, OF p. 653 &.
The charge was murder 10 the trs' d.
gree Dy p0isOr. Ine pflsOnef vas either
quilts " INA Dnerct or sui.t. oi h' o.leufe
a. a. The law express declare murder
by poison o. De murder il in- ms degree
And q To- prisoner Vas guilty or int mur-
d. a. CHARGED lr tle nd ict m-nt. ur must
of necessity have been guilty ~ murder lh
the Irst degree. lie col-c have been glllt}
o. nothing else
From this It viii be seen that upon
AZ indictmea; framed for murder IN the
frs; degree there can be no conviction
OF murder N The second degree. But
upon & common-law indictment a IL
tn, case. the Jury decide upon the
Grade Of murder. The Indictment Will
suppor, either grade. The error mere
was N the assumpuol that the IDdlci-
meut charged murder II the first de-
cree IN terms. a. II do, not. And the
finding or the jury make, i plain that
thev supposed. a. the Indictment
charge. that wiliui and malIciou.
killing was murder II the first degree.
They adopt the charge n the ndlct-
ment a. the measure Of their inding
and that charge Is not murder II the
tirst degr.e.
It's further submitted that the re-
cord does not show. except By inference.
that the prisoner was present when the
verdict was rendered. This should ap-
pear II capital cases atirmAuyely. See
3 Rob. odd Pract.. =. 2J5; sperry :
case. 9 Leigh. CO Gibson's case :
Va. Cases. 73: Hamilton g. Com I
Harris. 100: Dun rs. Com. q Barr
SS4; scrcggs rs. State. Suede i
Marsh. SIS. In Holms rs. CON-, =
Pa. ST. 22l. the Court says
Had This conviction teen fns murder
lie record would not have supper @l J ior
n tt,es not afilruztlvrly appear i.i"f tiir
prisoner Was present when lne Fefr IA
rendered.
The judgment should have be ar
rested for the foregoing reasons. Il
was error 70 override the motion.
VIII.
EvIDEN = or
DR.. GARLICK.
The last bill Of exceptions l. 10 the
refusal Of the Court 70 set aside the
verdict and sentence and grant new
trial upon the ground Of after-discovered
testimony. The affidavit Of Dr.. Joseph
=. 6arlick. who was the teacher Of the
deceased. and who states be was intl-
mately acquainted with her hand
writing. Is to the effect that = MS cob
viction Is positive " that the hand'vri-
ting on the envelope. the superseriPtion
Of the note found III the waste-baskei
Of the American Hotel. is not the hand
writing Of Miss Madison. although the
body Of the note is written by her, DC,
&C.. &C.. which information came tc
counsel after sentence had been pro
nounced.