Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1891-05-08

statute, and if Judge Moncure's decision
was contrary to the spirit OF that lnten-
tion-if it was contrary TO common sense
# it was contrary TO reason-lt III was
at varience with the enlightened prog
ress of the age-it ought not to influence
the Court. He called attention to the
fact that the defense was Directing to
these Jurors, and wanted to know
WHY THEY so sTRENUoUsLY OBJECTED,
If they were given twenty fair and com
petent Jurors. He said: "Now, want
to ask the other side some questions,
and want them answered"
Mr.. Sommerville asked when they
were to be answered, and Capt.
Dovener said Now or here
after" Col. Arnett said:
"Well, then III answer it later" mo
you will not" said the Captain, Il have
the closing in this matter"
Col Arnett exhibi ting desire TO say
something, Captain Dovener sat down,
and counsel for the defense entered into
a running argument with the Court re-
garding the meaning Of the sections re-
ferred to, in which original matters
were somewhat obliterated. AT the end
of this discussion Captain Dovener re-
Sumed, and after saying that judgments
of Courts were often reversed, in the
progress of criminal jurisprudence, and
cited the bred Scott decision and others
which have been set aside and were
now held as worthless, although once
In high favor. The Captain said he
would not question opposing coun-
sci, but would address the Court
He then proceeded to argue that the
object and intent Of the Legislature,
when there was ambiguity, was the
thing to be arrived at, and this being so,
even though the exact language of the
Virginia statute should have been
taken, it did not follow that the con.
struction put upon it by Judge Moncure
went with the re-enactment Of the sec
ton in this State. He was entirely
willing the defense could get
ALL THE COMFORT THEY COULD
get out of the Virginia case, and they
could take Judge Moncure's argument
and apply it to the West Virginia
section. What did the Legislature
mean, in that section, by presenting the
minor age of twenty-one If it was not
prohibtive, and il that was so, did not
sixty years stand on exactly the same
footing? The Legislature was not en-
acting nonsense. He challenged the
defense boldly to point out any differ
ence between sixty and twenty-one. in
the section. If man over sixty was
eligible, boy OF seventeen was also
eligible and Il qualified juror. Suppose
the old Virginia statute should have said
white freeholderS, and black free
holder should come in? What would
be the result? Law had some reason,
and yet the defense would, in consist
ency, saya waiver would stand. Liabil-
ity and qualification meant the same
thing in the section, and all qualified
Jurors in West Virginia were liable to
sit on a jury. The thing didn't require
a decision: nothing but plain inter-
probation of IA plain English sentence:
"All male persons who are twenty.one years
OF age, and not over sixty, shall be llaule 10
serve us jurors, except as hereinafter pro-
vded."
The Legislature, in its wisdom, liked
a period at which man became COM
petent person, consideration being given
to age and mental ability, and in like
manner there was period fixed when
that qualification came TO an end. Inc
defense would not pretend that, under
the section, Il person under twenty-one
was qualified, and there was no differ
ence rs to sixty. The controversy. with
all due respect, was
NOT FIHST-CLASS NONSENSE.
The defense says there is no dis
qualification on account Of age. We
have statute little different, and the
defense could have challenged juror
on account Of age, and he would have
been ineligible. Sec. IS says:
"'No exception shall be allowed against
Juror after he j. sworn upon the jury on ac-
count Of his age, or other legal disability
''What does age or other legal dis
ability mean? Does it not fall directly
in line with Section one? 1t seems to
me it fixes age as disability before the
Juror arrives at twenty-one and after he
arrives at sixty. We are twice child,
and after the age of sixty men generally
have defects of hearing, etc, which the
Legislature recognized. If this were
not so man ninety years OF age might
serve as Juror, if he wanted 10.
In closing. Capt. Dovener referred TO
the Straudcr murder case, which was
not only passed on by the Supreme
Cour1 of West Virginia but the Supreme
Court of the United States, and said
that in the latter Court both the Attor-
new General Of West Virginia and OF
Virginia, who prepared a joint brief In
the Strauder and Reeves cases, over
looked the point raised by the defense
here-that is, they overlooked it, II the
defense is right. He called the atten-
ton of the Court to the fact that II
DISQUALIFIED Juror went into the bon the
defense could take advantage OF 1t in
motion in arrest of Judgment. If the
idea of the defense respecting Sec. one
was correct, there was no statute IN the
Code of West Virginia defining the quai-
6cations of jnrorS, and We were all at
sea.
JrROH KREIG'S CONDITION.
The Court expressed a desire for coun-
sci to see 100 L. s., containing the
Straudcr case, a ID the matter was de-
ferred to put DR.. A. F. Stifel on the
stand to be questioned regarding the
condition OF Juror Kreig. The Doctor
said he had repeatedly examined ana
tested Mr. Kreig; his hearing was i'm
paired to some extent. When person
spoke distinctly and his attention was
fixed. he could hear, but under other
conditions he was likely to msunder-
stand. Under slight cold his hearing