Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1891-08-07
THE GARRISON CASE
ARGUMENTS HEARD BEFORE JUDGE PAUL.
YESTERDAY AFTERNOON,
On the Motion Made By the Defense to Have the
Judge Named Take Up and Conclude the Pend
ing Notion for New Trial.

to be made by counsel in the Garrison
murder case. on the motion made by the
defense to have Judge PAUL take up
and conclude the hearing OF evidence
.on the motion for a new trial, in pro-
cess of settlement at the time Judge
Campbell was stricken with typhoid
fever. In addition to Prosecuting AT
torney Howard and Capt. b. B. Dovener,
representing the State, and Col. w. w.
Arnett and Hon. j. B. Sommerville, for
the defense, there were present quite a
number of legal gentlemen, including
Judge A. F. Raymond, late Of the Su-
preme Court, Judge A. B. Caldwell, and
others prominent at the bar. The de-
PENDANT was brought into the room by
Sheriff Steenrod and Deputies Lane and
Bentz.
Mr.. Sommerville opened the argument
for the defense, reading at the outset
Sections . and 8, of Chapter H., Acts OF
1881, which Sections, in their essential
parts, are as follows:
40. Either or both of the Judges of the
circuit may hold any regular, special or ad-
iourned term of any Court therein, ana
when both Judges shall be present at any
Court, they may sit together for the pur-
pose of making rules, making any appoint
ments authorized to be made by the Circuit
Court. assigning the business OF the Court
to the respective Judges, and transacting
any business OF the Court for which it is
proper in their opinion that they should slt
together, or they may hold Court separ,
ately, but no cause shall be tried or heard
by the Judges sitting together. In county
in which the two judges shall SIT at tne
same time, but separately, the Courts held
by the respective Judges shall be desig
mated as Parts One and Two of the Circuit
Court Of the county, and each shall have
and exercise the same power, au-
thority and Jurisdiction as are
or may be invested in Circuit
Courts. Either of said Parts may be held
by a Judge of another circuit, or by an
other person, in any case where the Circuit
Court of the county may be held by such
Judge or person if there were but one
Judge of the first circuit"
IS. If either Judge ceases to be Judge
of the circuit, the other Judge shall there
upon have and exercise the power and dis
CHARGE
ouired of the two Judges acting jointly
until the vacancy is filled. If the presiding
magistrate ceases TO DE Judge OF the cir
cult, the other Judge shall thereupon be-
come the presiding magistrate, until
the vacancy is filled, when the new
Judge shall take the place Of his
predecessor, and be the presiding magiS-
trate during the years and parts of years
for which such predecessor would have
been presiding magistrate had he remained
a Judge of the circuit. At any time which
one Judge is presiding magistrate,a an order
or appointment concurred in by bothJ Judges,
NAV make the other Judge presiding mag
istrate in his stead for specified time, or
until further order or appointment OF the
two Judges made with the like concur
renee"
Section 6, of the same chapter, was
also referred to once or twice in the
course Of the argument.
Mr. nssaranrvilln -nIsnnad his argyll
ment by saying: =
"There has been no decision on this
matter and no construction OF the stat
ute by the Court of Appeals, and there
fore we have no authorities to submit
to your honor. 1t turns on the con-
struction of statute, and L suppose
must 90 according to the elementary
PRINCIPLES laid down in the books for
the construction of statute. l have
by Judge Boyd that the
practice has been to interchange cases,
and to do exactly. what is here asked
for. and suppose the best thing Is Tor
your honor to hold special term OF
Part Two, as presiding magistrate. AS
7 gather from the whole tenor OF this
act. which have just read, the purpose
of the Legislature was to clothe either
Judge with the powers OF Judge In
other judicial circuits, so that II either
Judge is sick the other can take charge
and be in fact the Judge OF this circuit.
The language of the act is very broad.
Gwen in case of death, you don't do
Judpe Campbell's business then, but
simply assign all the business aud trans
act il. II you see fit. AS a presiding
magistrate, under such conditions, you
could transact all the business that both
could do. II Judge Campbell should
die YOU could assign all the business to
part One. and could then take it up just
as il both had assented to the arrange
ment.
AT the next term of this Court,
Judge Campbell could call in some
Jndge to hold Court for him, If he is
unable to sit, and l have no doubt OF
the power and right of Judge, acting
in regular session, by the consent OF
parties, to transfer, arrange, etc. But
as to the power of your honor, or OF
Judge Campbell to call special session,
at which Judge Campbell could not sit,
and make such an order, it Is to be
gravely called in question.
"Here is case heard and tried in the
Circuit Court of Ohio county, and Judge
Campbell sat upon the bench. Two
weeks were consumed in hearing Of
the case. Eight or ten days were taken
in the attempt to get jury. During
the whole of this time Judge Campbell
had an opportunity to see and scrutinize
the persons and circumstances sur
rounding the men who are now in
question. He had an opportunity to
see and hear the witnesses, 20 judge OF
their hesitancy, if there was any, or of
their earnestness; of their expressions
of face, and generally of all the tangible
and intangible things which go to form
an impression and an opinion. We had
a trial and verdict. My friend on the
other side has spoken of the hardship
OF delay, and has said that it was vir-
tually denial of justice. don't
so understand it. We are not asking
for delay. II this case is to be tried
over again, the sooner we know it, the
better. II it is not to be tried again,
the sooner we know that, the better
But that is not the question. The
question is the power of this Court.
II have heard suggestion TO the ef-
feet that Judge Campbell has expressed
a willingness to let you hear this case,
- &c -, xr-ould Indicate vonr copcl,