Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1888-03-27
is SWORD, it is under the control of the
Court, which has

SoHue~e VI JeAOA OPNCg9 1ue eNlut0C
disclOses that at six different times ant
places, within from fifteen to twenty fiv
days before he was sworn as a Juror in thi
case, he declared that the prisone
ought TO be lynched that he wa
guilty and would be convicted, anC
that he would bet $50 that he would b,
convicted, and other expressions Of like
character, applying at the same time yery
harsh, disgraceful and opprobious epithetl
to him. When sworn on his roir dire, b,
stated that he had not formed or expressed
any opinion. After his attention had beer
called to these matters, he did not deny
them, bat simply said he did not recollect
If any ofthis evidence had been brough,
to the attention of the Court before he wa,
s%orn, he would have been told to stanC
aside, No fair-mnded man would say tha
he was
FIT TO SIT AS JUROR
in the trial of the prisoner.
But before am permitted to set aside
the verdict on account Of these expression:
OF opinion on the pant of the Juror, mus
be satisfied that his mind was biased OF
prejudiced against the prisoner; or thai
these expressions indicated a fixed snG
decided opinion, and that this state o.
mind existed at the time he was sworn in
As juror. 1t seems wonderful to me thai
any man of sense could express himself sc
strongly, to so many different persons, &C
often, and such short time before he was
called to serve as a Juror, and yet forget it.
Certainly man with such memory-ifit il
be true that he had forgotten his repeated
declarations Of the guilt of the prisoner,
would be totally unfit to carry in his mind
the vast amount of evidence, or any mater.
ial part of it. adduced at the trial.
1T is difficult TO discover what is pass
ing in the mind Of another person. There
Is no art to find the minds construction
in the tace,' hence we resort to the sayings
and conduct Of the party under inyestiga,
| ton.
The Court then referred to the affidavits
of Duffy, Barr, BAttenburg, Mccoy, Smith,
Atkins, Davidson, Martin, and others, as
to the expressions of juror Spivey before he
was chosen upon the jury, the evidence
showing that Spivey had repeatedly ex.
pressed his conviction that the prisoner
was guilty; that he ought to be hung
that he ought to be lynched; that he
wo uld be willing to
HELP LYNCH HIM,
etc Proceeding, the Court said
'Now, if am compelled to express an
opinion from this evidence as to the state
of Spivey's mind on the question of the
guilt Of the prisoner at the time he was
sworn as juror, that opinion would be
that Spivey could not have forgotten, when
on his rOir dire, that he had formed or ex-
pressed an opinion. A man might forget
that he had formed or expressed an opin-
ion on one, or even two occasions, espe-
cially after some time had elapsed; but
here the opinion is expressed at six differ
ent times, at six different places; and with
in fifteen to thirty days OF his selection ss
juror. This opinion was decided opin-
ion, expressed in emphatic if not in revolt
ing language. How can hold that Spiyey
was not biased or preiudiced, or that the
prisoper has not suffered injustice by rea-
son Of his presence on the jury? 1t may
or may not be true, as the prisoner swears,
that Spivey said to him he would do him
no harm ii he got on the jury. Certainly,
as the result shows, he has done the pris-
oner no harm; but he has done the State
harm, and he has done the administration
of justice harm.
But if have made o mistake as TO the
condition of Spivey's feelings toward the
prisoner at the TINA he was chosen as a
juror, it seems to me clear that the evil
dence discloses a sasaataCiUn 81 tn iIfy such
as would enutle the prisoner to
A NEW TRIAL.
Here, again, the Juror Spivsv figures az
the chief actor. George 3. Foreman aud
Jasper Bradley, respectable and upright
citizens of this county, and, Judging from
the manner in which their evidence was
given, by no means disposed to favor the
prisoner, both testify to seeing Spivey sit
ting on a bench in front of McNeiIl's res
taurant, talking to one Bolton, and that
no officer was in sight. The officer, Camp.
bell, says that he sal at the end of the
table, from eight to ten feet from the door
OF the restaurant. Spivey, the Juror,
states that he usually finished his break
fast first, and went TO the front door aud
Sat on the steps I'LL the others finished
Spivey admits that he talked to
Bolton, but not about the case. The de.
position OF Bolton is not taken. This is a
stronger case of separation than the case OF
Wormley, 8 .Grsttan, 7l2. In that case
three persons talked with the Jury for
about five minutes in the absence of the
Sheriff, but all of them testified that there
was no conversation about the case. The
Court set aside the verdict, because such
conduct tended TO impair the purity of the
trial by jury in criminal cases. The verdict
IN the case of Robinson, 20 W. Va, ia,
was set aside under an exactly similar
state of facts, except that in the Robinson
case the affidavits of the Jurors were made
before those of Russell, who deposed to the
separation at the water closet, while in the
present case the affidavit of Spivey is made
subsequent TO that of Bradley and Fore
man.
On another occasion Spiyey was seen by
Mr.. s G. Smith 10 leave the restaurant
and 60 into McNeilPs store. distance of
thirty-tive or forty feet. While the juror,
Spivey, was in the store, the officer having
the jury In charge, was eating his break
fast in the restaurant. 1t Is true
sPIvEY DENIES THIS.
1t is true that McNeill says that Spivey
was not in the store by himself, but Nc
Neill further testi6es that boy attended
to the store in his absence, and
the deposition of this boy is
not taken. Again the juror, Spivey, ls
seen near the court house talking to q
stranger at distance of fifteen feet from
the officer. All this evidence is in perfect
accord with information furnished me by
the Sheriff and his deputies-or by some
OF them-during the trial, that they had
no difficulty with any of the Jurors, except
Spivey, who would not obey orders, but
would go off from the other jurors; and
that he was drinking liquor, but that they
did not know how he obtained it.