Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1886-12-02
The OPINION IN FULL.
rdr,l;cR Of Inrh and sdmisSiOn Of "Cnr-
iis Letter" Regarded as Errors
ugErR NOT CERTAINLY ESABLISHEH.
Nre Thinks and Quotes from the Evidence
10 Prove,
MYSTER OF THE KEY
mis- and the Red Shawl and the Shoe
Tracks Discussed, &C, &c.

The following opinion Of Hon. Drury A.
Hinton. dissenting from his four brother
r,.mbers 81 the supreme Court OF Appeals
:, the case Of Cmycrius versus The Com
monwcalth, was flied in the clerks otiice oil
that tribunal yesterday:
CiBreriuS as. Commonwealth.
|. would seem 10 hc beyond doubt that
the royer 10 punish for crime possessed
nv alt civilized communities had its origin
and source IN the inherent righ' which
L,jopeed 10 every individual, in state 81
,eftrc. 10 secure himself against injury
from hs fellows and that II was trans
t,rr,d. I'm course Of time and In the pro-
,,,es. a. civilization, from the individuals
20 the sovereign power OF the various COM
murtlies a. they came into being-Ru-
,berferth's Inst ch. XVIII. Bish. Or.
raw. .oc. 8, 4 Bl. Com, eh. l., 5.
And IL cannot be doubted that the prompt
oud fearless exercise OF this power, on all
rronrr occasions. Is absolutely essential to
~ .afety and we'll being, II not the life, OF
oil orranized society. Nevertheless, as
e. rirbt i confined to the Use OF such
,ncsns and the imposition OF such penal
,i,s as the law.making power OF the state
tco,uS necessary 10 prevent the recurrence
"a crime. il ls obvious that the right to eX-
.r,ise This r0wer never arises, and cannot
bc taNfullv Exercised, until there has been
a c,jyac positively established. and the
real criminal certainly found and le-
,-,llv convicted. The exercise OF this right,
therefore. in any case, where there Is
reasonable doubt either as to the crime or
the criminal, especially in cases OF murder,
who're the penalty Is death, can never
l.c justified, and l. likely 20 work irrepara-
hle injury 10 the accused, The defeat OF Inc
r.al ends OF punishmcnt, and tend 10 awant
of confidence in the humanity OF the law
aud the due administration OF justice.
Hence II is that 10 meet exactly such eases
ile maxim at is better that ninety-nine
,fh.t !, an indefinite number Oh guilty per-
sons should cscaNe punishment than that
one innocent nel IN should bc punished
has been wisely 4doptCd-JOhuson's case,
10 Graft. $50: aiit's case, 2l Gratt. SIS.
n must also b., ohyi that Is the Of'y
ends sought TO 0htsinCd by the infict'Os
~ Uun;shmppI arc-frst, 10 prevent the
criminal and other- from the commission OF
Ike crimes: and next, 10 amend the crlm.
nal, ihai The idea, sometimes advanced bV
The unthinking. that pcrson charged With
specific offence NAV be rightly punished
ior some other offence. or for general de-
prayi'v, or that the offence actually commit
led. although separate and distinct
from the one with which he Is
charged, being equally heinous. he may be
propcrly punished for the offence not
charged, in order 10 rid the community OF
hin. has no place in the criminal iurispru'
denrc II this or any other country.
And a. il is the b0undcn dHty Of each
Judge OF this court. in every case properly
80. 40 ..,r.fflfx cxauin.a the rrnenp1iups
of the lower court, and il he finds that there
l,s been mi,trll or failure OF legal jus.
Ucf. either because the prisoner has been
denied auv, even the icas, imp0rtlnt. OF
The safeguards which the law has justly
and merciiully thrown around bin Tor his
Troferilon, or that The jury have reached
IN erroneous conclusion upon The evidence,
az that he has been prcludiced / ny other
respect 80 u declare, l shall offer no
spoloey for dissenting in this, the first
case M this court 80 Tar a. ! eau recall, in
which Judgment of a6irmance has been
entered " ilhout at least three ot the judges
being able 10 agree in all the reasons by
which their conclusion was reached, aud
.bal proceed to state as briefly a ! can the
grounds which, in my Judgment, clearly
tuuilo the accused 20 new trial.
The Discharge Of Jurysnan Larhe.
The fr.t error OF which the accused has
The neli TO complain is the rejection Of the
iuryman Larkc. As appeSred by the first
till 81 exceptions. after twelve veniremen,
among whom was the yenrcman Robert
". Larke. had been examined upon their
r0.r dirC, and accepted by the Court as
competent Jurors, but before tbc panel had
been completed, and before said Jurors had
teen SwoIn 10 try the cause, the attorneys
for the Commonwealth challenged the Juror
Lake upon the ground that he had pre-
Nously stated that ne "would not under
ary circumstances convict man upon cir
cumstantisl evidence" And they then IN.
ir0duccd, in support Of their challenge.
two Witnesses, who testified in substance AZ
follows: That Ia conversation held with
The Juror week or ten days before, begun
about this case, but which had drited into
a talk ab0u, Cnme generally, the Juror
Lake made TIE remark above mentioned
MhICupon Larke took the stand and
stalled under oath that he had forgotten
about tle conversation and could not recall
The word, he had used. What ~
mUnl' said he, "by what | said
w.. that nan ought 10 be Uer1i
S'o}- CHd cautious "a cORUicjia9 nan
on Circ,H.Stdhiidi ertGence. II this case
presented an UnbfOkeu chain Of circum
sianiial evidence, fully proved, ,o)uld
CoEUict km II was convinced. ! don't
remember having said that would under
10 circumstances hang = man on circum-
,untial evidence. l didn't intend 10 say
Mut l,oOUidpi cOHrjct a nan in any case Of
urOumSidatidi crioleHce, 6at icOgld be regy
cautious IN doing so. | made the remark
10 general way" Now. II Is undoubtedly
well settled that no person who has con-
scirntious scruples against the iniliction OF
The dCath-penaiiy, or who Is conscentiousiy
oppos, d TO couycting In a capital case on
circumst9ntlal evidence, Is a competent
juror In any ease where the penalty may be
Gtaih. for the reason that every one IN or
der 10 be competent Juror must be IN
condition Of mind TO lind verdict In ac-
ooIdance with the law and the evidence.
To place any one entertaining such scrupleS
upcu jury and go through the forms OF
trial, with the almost certain result OF
mi,tfisi, would, therefore, be a mockery OF
justice and prostitution Of tie law which
no court could for a moment tolerate.
But tins principle has little or no bearing
upon the ease oi this Juror. 10 Is not pre-
ieudCd that this Juror had any scruples
:sainst the infection OF the death penalty,
nor can II be claimed upon any fatr inter-
pTCiaiiOn of bis sworn statement, taken as
whole, that be has conscientious scrupies
sgai0st finding verdict oi guilty In cipi-
tai case on circGmstanual evidence; for.
yiewug h,s statement in the proper light,
II l. pO,hiug more nor less tbsn direct
assertion, that although he would he slow
Sna csuliCus IN conYiclng in such cis',
Vel ihst he trotid cOncScf, ii convinced OF
The guilt a The accused, by au tubroken
chain OF circumstance, fray proren. 1t l.
iac inat, Ia all likelihood, be did make In
Tie course OF a conversation. la which ne
wa sdy properly combating the pro.
p'iCy oi forming So opinion upon news
isEer accounts OF The evidence. the remark
siuibuied 10 hinl. but The evidently honest
dissyowsl IA opan court Of such n want
oi faith in ite pr0baiiyc power o!
circu0sisntlal eyldcnce - the use 0i
ibst language imputed 10 bin and
eonisiged in the declaration, % didn't
iat'ra 70 sgg wouldn't convict a man IN
hrf eSse OF circulas;an.lsl evidence, but J !
would be loTy cautious ia doing So"
"ould stem 10 imply, coupled with tbe
iac' iba b. bad forgotten hoih The utter
cree anj chs ccea.i i0n on which u was
mace, sho.s that II was nothing more
ibsD lie iRropsiderate ielnu'k oi one @bo,
III 30 idle ln0meD'. has given expression 70
s~oiinent Whit be did hot feed and 20 4
ipTfo'e which be neyf entertained. o.
w u M, b. saiG. as Was said az another
s"Sr The CouTs Ia st,ts rs. Dlcxen, -
a'.s IN. 10: "iiis a9.wefe given under