Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1891-08-09
NEGATIVED.
JUDGE PAUL. DECLINES 10 HEAR fHH
PENDING NOTION
In the Garrison Murder CAss-fhs Yull Text Of
His Decision BANDED In Yesterday
Authorities Cited.

murder trial, that he take up ana hnlsn
the pending motion for new trial. in
terrupted by the illness Of Judge
Campbell. He takes the ground that
10 has no authority to interfere with
the matter at this time.
Following is the text of his decisions;
State OF West Virginia
George /. Garrison.
Upon application to hear motion for a ne"
trial.
1.-The question to be decided in this
application is the authority OF one
Judge OF the Circuit Court OF Ohio
county to hear and determine a motion
for new trial in a cause which was
tried before another judge OF such
court.
'As Q general rule, the application
for new trial should be addressed to
the Judge who tried the cause; but there
are instances where the motion may be
heard or determined by another Judge
as where the trial Judge dies, or re-
signs, or where his term has expired. In
any of which events his successor may
hear the motion. 3 Thomp. on Trials,
sec. 1924; OFT V. McHenry, w. va:
73
This rule in West Virginia so far at
least as 1t effects civil cases is empha-
sized and enforced by statute Sec. 10,
ch. 131 OF Code, which provides that In
such cases the court before whom
trial by jury Is had may grant new
trial, unless it be otherwise specially
provided
1.-THE reason for the rule is obvious.
1t gives the trial Judge an opportunity
(of which another Judge should not de-
prive him, except in extreme cases. to
review his own rulings during the trial,
which are often, as matter of necessity,
hastily made, and II erroneous to correct
them. Then his peculiar fitness to en-
terrain such a motion, owing to the fact,
as was said by Judge Brannon in State
v. Morgan, decided by the West Vir-
ginia Supreme Court OF Appeals, June
%, 1891 I13 S. E. Rep, 3s5-391l |, that
he has seen and heard the witnesses,
their words, their demeanor, their
countenances, the true and actual
features of the CASE while another
Judge sees only the evidence on paper,
is consideration which should not be
Overlooked-a consideration which
prompted the same Judge, In the opinion
above quoted from, to say: "A criminal
case in Circuit Court, and in this
Court on an overruled motion for new
trial. occupies vastly different place.
l might almost say that In the Circuit
Court the question is whether the pris-
oner Is guilty beyond reasonable doubt,
whereas, after a verdict of guilty, and
its approval Of the Circuit Court, the
situation is reversed and the question
here is whether it appears that he Is
innocent?'
1.-THE State, therefore, in insisting
that this motion shall be heard and de-
cided by the trial Judge, is simply de-
handing right which the law plainly
and unequivocally gives her-a right OF
cases of necessity.
at is claimed, however, on behalf Of
the defendant that the general rule
above referred to, so far, at least as
this county Is concerned, is materially
modified by Chap. of the Acts Of 1881,
under which the Circuit Courts in the
First judicial Circuit were organized.
Admitting that, in this county, under
the authority vested in him by the Act
of 1881, the Judge presiding in Part
One can hold any regular, special or adj
iourned term in Part Two; and that in
the vacation of that Part, he can call a
special term thereof, and try any ma
tured case regularly on its docket,
either In that Part, or transfer ii to
Part One and try it there. But this au-
thority does not. it seems to
me, conflict in the slightest
degree with the general rule OF
law governing motions for new trials.
Nor is this view wholly unsupported by
decisions of other Courts. The St.
Louis Circuit Court, like the Ohio coun-
ty Circuit Court, is divided into Parts.
And in Voultaire V. Voultaire, 45 Mo.
6O2, the case was tried in Court room
No. l, before Judge Rombauer, who,
after hearing and deciding the case, re-
fused to hear and decide the motion for
q new trial, and sent the case to Court
room No. 9, Judge SMITH for trial. 1t
was held error. Judge Bliss, speaking
for the Court, on page COS, says: 1T
was the duty Of the Judge who tried
this case to go through with and enter
tain, and himself hear, the motion. 1t
it one OF those matters that peculiarly
belong to the original case itself. There
is large discretionary power in the
Judge, and the law very properly
gives him an opportunity to re-
view his decisions and correct his
errors, before the case can go to the
Appellants Court.
I'm Chicago, etc., R. r. Co. V. Mar
settles, 107, Ill, 313, however, it was
held that motion for new trial
might be made before Judge other
than the one who tried the case. That
case was tried in the Circuit Court OF
La Sale county, ILL.,, which is COM
posed of three Judges, before one
of these Judges which the mo-
ton for new trial was heard by an
other. But the decision was based
solely on the negligence OF the appel
lants. Mr.. Justice Craig in delivering
the opinion of the Court on page 3l5,
says: Had appellants entered motion
for continuance Of the motion for a
new trial, and supported the motion by
a proper affidavit, showing sufficient
cause, it might have been the
duty OF the three presiding Judges
to have ordered a continuance Of the
motion to some future day when it
could be heard by the Judge who tried
the cause; but a motion OF this charac
ter ought not TO be postponed beyond
the term at which the case Is tried, I'M
less good cause is shown 1t will thus
be seen that this case sustains rather
than conflicts with the Missouri decision.
''For the foregoing reasons it seems to
me that have no discretion whatever
in the matter; and must, therefore, de-
cline to hear the motion.