The Brookhaven leader., 1885-03-19
r. q. PENN VS.. THE STATE.
Decision of the Supreme Court
by Judge Campbell.
From the Clarion.l

for the murder of X. Is. Rails, was
found guilty, and sentenced to be
hanged. During the trial, which
lasted about ten days, a great mum
Der of exceptions were taken, and
embodied in bills Of exception, and
assigned for error here. The first ex-
ception taken was to the action Of tue
court in drawing a special venire,
and fixing day for the trial of this
cause, while another capital case
was pending. This was not erro-
neous. Tie case was taken up on
the next day after the day when the
venire was made returnable. The
prisoners elected 10 sever, and the
State elected TO try r. G. Penn
first. He made affidavit for con-
tinuaIce, on account OF the absence
Vt certain witnesses The continu-
ance was properly denied, under
Code 5 1859. Bowen, one of the alb
sent witnesses, was introduced on
the trial 10y the State, and testified
that he knew nothing OF the case.
Tue facts stated in the affidavit, "a
provsble by the absent witness,
Roberts, were not admissible.
Yates, the other absent witness, re-
sided 10 an adjoining county, and
might have been Immediately OBJ
lainei by attachment, as far rs ap.
cars, and produced during the trial,
but he was not obtained, nor was
his affidavit, on the hearing of the
motion for new trial and all that
it was alleged could be proved by
him. that was competent testimony,
was testified to by others. The
court rightly refused TO require the
district attorney to admit that the
absent witnesses would testify as set
forth in the affidavit.
In the cxamina ion of the jurors
on the roir dire, the court required
the questioning to be concluded be-
fore passing upon their competency.
The prisoners counsel insisted upon
the court passing upon the jury,
and the matter being then
submitted to the counsel 3; and
the court not agreeing to this,
they declined to examine the jurors
at all The action of the court Oh
this point was strictly correct. OPP
portunity was given counsel for the
prisoner to fully examine the jurors
rs to their qualifications and rs the
privilege was declined when offered,
it could not afterwards he claimed.
A juror named Candy, being exam
med by the court, stated that he had
neither formed nor expressed an
opinion, but that he hal conversed
with witness Tor the State. Hav-
ing no opinion as to the guilt or in
nocence Of the prisoner, he was free
from objection, and was rightly pro-
nounced competent by tue court.
The panel was completed, and the
trial proceeded.
The prisoner excepted tn the ties.
timony of p. L. Ware, a witness for
the State, by whom it was proposed
To prove that he had had q CONVEX
sation with r. G. Penn, on the night
before Rails was killed, in which
Penn had given Ware a message To
communicate to Rails. The admis
sion of Wares testimony was proper.
| 1t related to what was said between
him and the prisoner in an interview
sought by the prisoner, in which the
relations between the Penns and Ri
ais was the subject of conversation
The testimony Of one Wright was
offered by the State. 1t was to the
effect that in a saloon on the night
before the homicide, Rails had said
10 him, in low tone, in the pres
ence of tie Pcnns, but not in their
hearing, "Don't you see those men z
They are after me They intend to
kill me THAT he (Wright) escort
ed him out, and they went t. Faler's
Hall where the Penns also appt AIRED
shortly afterwards, and Rails made
the same remark, in their presence,
but not IN their hearing. This ties
timony was improperly al ,,.ittcd.
but could not harm the prisoner, be
canse the course apd conduct of the
Penns towards Rials on that night
was shown by many witnesses. II
did appear that they were pursu-
ing him. After he had lett Faler's
Hall, he was in front of a store, and
the Penns arrived there, and the
prisoner had a conversation with
Ware about Rails and the "dfiicul-
ty" with him, and about shooting
it OUT etc, and requested him
(Ware) to deliver message to Ri
als on The subject. In little while
after this, Rails was found at the de-
pot, and the Penns were there ours
ing him and challenging him to
fight. Rails shrauk hom them, and
signifed his desire TO have a peace
Iui settlement, appealed to Rev. Mr.
Millsaps, who WAS present, to say if
he was not right in desiring friend
~ settlement, declared he was not
armed and had no friend there, and
jumped behind Mr.. Millsaps to
avoid his inturated foes, when the
witness. Wright, interposcd to insist,
in behalf Of fair play, that Rials
should be allowed TO go for arms
and a friend, and thus got him
away Tram the Penns. 1t Is true,
they did not kill Rails that night
What would nave been the result, if
Wright had not interfered as he did