Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1892-02-26

| gard TO the case. nor permit any one 10 Cou
verse with him in regard to II, TINS Juror,
I during recess on the 5tn OF May n IsSa
conversation with Mr.. T0lbert. What
| that conversation was, is, perhaps, harc 10
determine. From the examination OF Mr..
/ Robinson il appears thar there was some
conversation, however, in regard 10 tho
case. limited and meager IL may oe.
Mr.. Tolbert swears that upon that oc-
casion Robinson, in speaking OF the prison
i er's connection with the homicide, uSed tne
revolving and approbrious language, whlch
will not quote. out which, II USED, SHOWS
az that time, in the mind OF the Juror,
deep-seated and malignant olas. Auls
specinc statement Mr. Robinson denles-ln
fact. he denies that he used any language
showing bias or expressing an opinion, he
was not vet elected and sworn as Juror,
but he was on the border line or II. ne
had passed the ordeal, and all the tests
of qualification aud was accepted as one OF
the twenty talesman from whom the trlerS
of this man were 10 De elected ana sworn.
In the light of these facts, standing SO
close upon the Threshold OF the panel OF
twelve, may il not be aptly claimed that
the burden Of proof shifts, and that the
State should satisfy the Court peyona all
reasonable doubt that this juror stood tar
and impartially. Without passing upon
that question. let Us consider another phase
OF the case.
So far as appears before me in the evil
denCe submitted, TOlbert and Robinson
were men Of equally high standing lot
truthfulness and uprightnesS. Neither OF
them in this respect have been aSsalleu,
and vet / am confronted with the positive
contradiction Of the one TO the other II re-
gard 10 a statement material, if not vital,
10 this motion. Within the prescribed
rules and limitations laid down by the au-
thOrities, let us apply the tests that would
measure and determine the truthfuInesS OF
these respective statements.
The authorities say that the sworn state
meuts of the juror in support OF his verdlct
should be received with great caution. In
the language of the books
In criminal cases particularly the temp
tatjon offered 70 Jurors 10 explain or excuse
irregularities in their conduct is very great.
II they admit misconduct they are liable 10
censure, and perhaps fine; consequently
they are more likely 10 deny than TO ADMIT
that their verdict was influenced by any
misconduct or improperly"
After this conversation between Robin
son and TolOert, Juror Robinson, In COM
mon with the other Jurors, was ASKED sew
eral times, collectively, between that Tune
and the Saturday following, when the Jury
was struck, il they, or any OF them, hau
Adu dllN lOlN GISdNAQu Will az OAASs "a -
mitted anyone 10 converse with them IN re-
gard 10 the case. Juror Robinson saws, in
his cross examination, that when l asked
this question collectively be remained ST.
lent, but admitted that he knew
the Court accepted his silence
as az affirmative answer that ne
had no conversation with anyone In regard
% the case; thus tacitly admitting that ne
was willing 10 mislead the Court, For
had he then and there, IN response 10 any
interrOgatOry, stated the conversation Lnat
he himself admits 10 have had with Iol-
bert / would have felt il my duty to eX-
cuse him from further service IN the case.
His willingness TO disregard and dlsooey
the Injunction of the Court that he should
have no conversation shows that he was
ready and willing 10 talk, at least TO some
extent. about the case, and his reckless dis
regard OF authority was utterly unoecom-
ug a man charged with so grave and sol
emn a responsibility. Thus, applying the
test, and weighing the evidence OF Mr..
Robinson, how can the Court regard Twin
equal weight and consideration as that OF
Mr., TolOert!
Close as the case must be, l cannot re-
gard Mr. TOlOert as telling that which Is
untrue. and Mr. Robinson as entirely truth
ful.
In order TO sustain this verdict, the Court
mist be satisfied from all the evidence be-
fore IT,, on this motion, that the prisoner
had a fair trial by an impartial jury OF his
peers, and, so far as practicable, 10 allow
no suspicion of unfairness. Just principles
should not be disregarded, and the Court
should be able TO conclude TO its entire sat
iSfactiOn, that a citizen upon trial Tor muir
der has had fair and impartial trial. ana
that, however just the verdict may De,
there shall be no conviction Of a citizen OF
the State and republic without such fair
and impartial trial.
Accepting the evidence of Tolbert as
against that of Robinson. l am not entirely
satisfied that the composition of that jury
was such as 10 give the prisoner fair and
impartial trial. Therefore, the motion TO
set aside the verdict and grant the prisoner
a new trial should be granted, providing 1t
appears 10 the satisfaction or the Court
that the prisoner and his counsel used due
diligence 10 ascertain the evidence OF Toll
bert, and were entirely ignorant OF such
interview and conversation between Rob
inson and Tolbert until after the verdict
was rendered.
On Saturday, the eth of May, the day
the Jury was elected and sworn, on the
final examination of Robinson on his rotr
dire, Col Arnett asked this significant
question:
The day YOU Were SumnCnel anu hEEdlSH "
here DO you remember whether you had eN-
pressed an opinion, or said anything about it,
This question showed that counsel had
information Of some conversation had on
that day, or about that time, between Rob-
insOn and some other person. The perth
nent inquiry is, VINO was that other person:
10 is fair 10 presume that the knowledge Of
whom il was, or was supposed TO be,
was in the possession Of coun-
sell The only person they put on the
stand as having a conversation on that day,
or about that time, with Robinson, is Tol
bert. Is it not then, fair 10 presume that
on the 9th ofAiRy counsel had in mind, on
their inquiry above, the conversation wi IN
Mr.. TOlOert. and that conversation alone,
and that counsel knew, at the time they
propounded the inquiry, that Robinson had,
or was charged with having, a converse
ton with TOlbert at that time, and such ia
formation was in their possession! In
their cross-examination counsel for the
prisoner utterly disclaimed having