Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1886-05-07
the. conduct of the trial OF the prisoner
" and 10 prevent failure OF the ends OF JUS
venireman Larkc.

The first bill OF exceptions alleges
Court upon the challenge for cause
by the Commonwealth OF tho venire man
X. w. Larke In sustaining the said chal-
lenge. and discharging the said Lsrke rom
service on the jury after he had been ek,
amined by the Court upon his roir dire and
accepted az Juror.
Aiier the said Larke had been examined
and scce pied by the Court asa Juror ne was
challf nged by the Commonwealth on the
ground that he had, before being sword
stated "that he under no circumstances
would hang any man upon clfcuinstsn.'sl
| evidence The information upon whica
| The chailonge was based came 10 the know
ledge OF the ATTORNEYS for the Common
wealth after the said IarSe had oeen 80
accepted. The Commonwealth introduced
two Wifnesses--J. Il. Ford and w. a. BO3-
weli-to support It's challenge.
J T. Ford testified as TO where tie state
ment was made by I.arke. and stated that
W. A. Boswell and Others were present; and
| he then said 1--WE were taking ABOUT this
Gaze. I said that could not setve as
| had formed an opiulon or made mp
| my mind. Mr.. Larke asked me. how 1
had formed my opinion? and tod him.
| frosn what had seen In the newspapers
BE said had no right to form an opinion
upon that. I said that was true, bat fnsn
cou.d not help forming an opinion aftfr be
| had read about the evidence. Mr. larke
then SAID that the evidt nee published was
'nOfhfH0 bUf circDnsfdDfidl eUfdcnce' j
said les, bat men had been hung on cir.
| cumsiantial evidence. lie said; Wen,
| uo,id not hHng any nam on ciTctHsfGntfGt
ctfdenoe' lie told us OF several cases To
show that no man OU0M 10 De hung on CIR
cumstsntial evidence. / understood him
to refer TO clrcumstantial evidence gene
rally, and that hc would IN no case hanZ
n man upon ciTcumstaDtial evidence.
William A. Boswell testified: They were
dlscnssing this case, and talking generally
about cline. Mr.. Larhe mentioned saverti
cases Of circumstabtial evidence. and said
| that he would not under any circun;-
stances hang man on circumstantlal evi-
| dence. He spoke IN general way, &c, e..
| DIDN'T undefsta nd him to refer particu-
inTly 10 This Gaze.
The Challenged Juror Iarke, then stated:
I'VE got 10 talking about circumstantisl
evidence. and narrated some cases To snow
the danger OF conVicting man on circuin-
stantiai evidence. 1 may have made the
remark RS stated by Boswell and Ford. and
II they say so have no doubt did. for tley
RENE inber perhaps better what said than
do. Itan't remember positively the words
spoke in general way, without reference
10 any particular case. meant by what
said that man ought To he very slow and
cautious in conViciing "a man on circum.
slant oil evidence. II this case piesented0n
unbroken chain of circumsiantial evidence
fully proved would convict him u ic0S
cCntiNccd. | don't remember having said
that would under no circumstances hang
a man on circumstantial evidence didn't
intend 10 say ! wouldn't convict man In
any Gaze of cifcumstantial evidence, but
wOuld be very slow and cautious In SO do
ing"
MIR. Larke then said that he was over
sky years OF age; that he had not thought
Of II when examined on his uOir dire; that.
If not too late, he wOuid claim. and did
claim. his legal exemption.
In MOntegues case. 10 Graft. this court
announced It's right TO examine the action
OF the lower court on a question OF challenge
TO a juror; but said. I'm all cases great
weight Is justly due 10 the opinion OF p
count before whom the urors are questioned
ana examined &C. The Supreme Court
of Texas. in Mason as. The state. Is Tex.
APP. 534, say" We cannot say that in this
action Of the Court there was any error. II
was the duty OF the Court To- see that jury
was empanclled composed of men VINO
were nee from all bias for or pre-
lqdice against the defendaut-who where
IN partial towards either the State or dc.
feDdant. In determining as 10 the fitness
Oi Juror the question Is largely ono OF dis
cIetiOn with the trial judge. He has the
proposed Juror before him Observes his
manner OF answering questions. his appear
ance. aud many other Indications whlc1
cannot he brought before this court; AMI
hen c.. he trlal-Judge IL In much better
cone dit'On TO pass upon the fitness of the in
diVidual TO serve a. a Juror in the case, than
this court can be from the record alone
such beng The case. this court viii nol re-
viEe such action OF the trial Judge, unless ~
should be made apparent o. us tnat the
trial-iutge had abused the discretion CON
iidCd 20 him to the injury of the defendants
rights or that he had infriDged the law
In the case of MeiIger as. Hiarke, IL Florida.
one Hokc was examined on his rDir dfc
(Just as Ierke was) after being accepted he
was challenged by the state (as Iarse was
and for the same cause. The aiidayits oitwo
Iaftics were introduced proving that HOke
had made declara tiOns similarto those made
by larke. HCBe was ordered to stand aside.
lie had made 10 statement tending 10 con-
iradict the aflidayiis; but such d difference
between that case and I0rkes case makes
difference only as 10 the weight OF proof
IL DOES not cOntroVert the princi0e. j.
passing upon the point, the Florida Suprem'
Court said one OF the best methods
akcGTiainiBg the opinions OF men IS Oy u
expICskiOn Of them. lfthere N any bett
mode IT. has not been suggested. sc. IL
setting aside OF the Juror In this case We
not the mere exercise OF power by the judy
Being present and Obliged 10 exercise NJ
Judgment on the moment. much s1Ould D.
allowed TO his discreet Judgment The
lower cOuTt WAS sustained.
Anotherar alOgOus case is that OF The state
Is. Ward, 80 Vermont. 23l. one Prior
was called as juror, who. upon being IN.
teuogated IN respect TO MS views OF
capital punishment. declared he had
cOnscicnt ious scIuples against rendering
verdict OF guilty In a Gaze where the punish
Iuent WAS death: that he believed the Ia"
tnfiicting the punish ment OF death WA
wrong; but that. II compelled TO SIT as "a
Juror IN such case, II he was tully satisfied
that the respondent was guilty, he would
render verdict OF guilty; and that J.
would require more evidence TO induce Mia
toi ender q verdict OF guilty In a case where
the punishment was death than where 10
WAS Imprisonment He was rejected. The
Court carefully noted the answers Of this
VeniIeman. and held that he WAS properly
rejected, as a trial should 4" be impartial IN
uspect 10 the state as well as the accused
The Court said " Uuder such circumstances
the QutstlOu whether he should be retalned
OF excused became necessarily matter OF
fact for the decision OF the County Court
which required the exercise OF the JudS.
men and discretion of That court in view
Of all the statements made by the juror and
evidence bearing upon the question"
In the case OF Waller uS. state. 40 Ala.
1876, Juror who stated in answer 10
question by the Court that he had scruples
against capital punishment was set ASIDE
by the Court Notwithstanding he stated In
answer To questions by the prisoner ." tnat
n lie was on the jury and the law required
him to convict he would do ". notwith'
standing the punishment might be capt
tall" IL has been frequently decided THAI
party who would not upon n murder trial
innict capital punishment is not compe'
tent Juror People Is. All Chung 5i Cal.
S9s; state rs. PTitchard, 10 New. IA Jones
"a. state, 81 Miss. 6s4; Coleman ~. state.
so Miss 4s4 Clanton Is. State. Is Tex
APP, lS9; S4 La Ann. Ss3; Ss La. Ann
9si.
And the LIST section OF chapter II OF the
Acts Of le77-'7e, page S4l. provides;
a person whose opinions are such as 10 rre-
vent bis ConNicting any one Of an oueuce punish
able win death shall not be allowed 90 serve as
Juror ou trial for such Ohcnce.'
The practice in matters OF challenge 10
Jurors by the Commonwealth for cause has
been simplfied by the statutes of Virginia.
The COMMUNICABLE alleges the causs; evil
dence on both sides IL heard by the Court;
and the Court decides, by preponderance
of evidence, whether the challenge Is sus
tained or not. See Criminal Procedure
1878, chapter IL, section @.
We are OF the opinion that the Hustlngs
Court was, upon all The eUtdence BEFORE a,
clearly right and fully justified in holding
that LaTke was not proper Juror In the
case: and that the evidence shows that he
not only announced his JeiieJ that no man
should be hung upon circunstancial evil
depce but that he argued To support his
views against q well-settled Principe OF the
law OF the state. Indeed, LarRe himself
after being challenged, admitted the ground
OF the challenge; and, in guarded Ian
guage, II not paltering In a double sense,
only said: IF this case presented an un-
broken chain OF circumstantial evidence
fully proved would convict him II wa,
convinced" The very question at issue was
whether he could be convinced by circum
stantial evidence In n capital case. aud he
himself intmAtes that an "unbroken
chain fully proved might not convince
him.
The prosecution and punish meut OF
criminals is vital 10 the safety OF the
whole people, and to. the peace and
dignity OF the Commonwealth and
IL is the policy OF the law and the duty or
the courts 10 see that the interests and
honor of the state are not intrusted to ju-
rors whose opinions would prevent tue ad-
ministration OF criminal justice according