Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1892-02-14
ANOTHER DAY
TAKEN UP BIZ CAPT. B. B. D0VENER In
JUDGE CAMPBELL'S COURT,
On hs Argument Of the Notion For New Trial
An Outline Of His Rsmarks-Col. Arnstt
to Speak Monday Afternoon

Judge Campbell missed the early
train yesterday morning, and tele-
graphed the Sheriff that, on account of
the ice, he could not get here until II
o'clock. IL was nearly II o'clock be-
fore the Judge reached the Court
House, having come down on the 1870
train on the C. & P. As it was too late
to continue the argument 1t was ar
ranged to convene at 1870 p. IN.
At the hour named Captain Doyener
resumed his argument by referring to
the Strauder case briefly, for the further
calculation of some minor point, and
then, recurring to his closing arguments
of the evening before, he said IL would
make no difference how vile juror
was, IL the defense exercised no dill
gence in hunting up the facts.
~ think l will be able TO convince
Your Honor, by evidence furnished by
the defense alone, that the defendant
either could have known or did know
all that has been alleged against the
Juror Robinson, and knowing, 1t they
did not avail themselves of that knowl-
edge, it thus amounting to waiver"
In calling attention TO this Capt
Dovener cited the Dean case and others.
"Now | undertake to say that the
circumstances in this case all point 10
knowledge or to opportunities which
were not improved by the exercise OF
due diligence by the defense. Yester-
day, in referring to Colonel Arnett's as
sertions that he was satisfied with Rob-
inson's answers, / said that he did not
put the questions without a motive,
and if he had motive he must have
had information, and there must have
been a cause for his questions on May
9TH, and if he had information he ought
to have followed it up energetically, II
he wanted TO take advantage OF 1t
later. Now, at the next stage, we have
the deposition Of Lester Bates. lie
said he was in Wheeling on May 10Th,
while the verdict was not redered until
May eth, so that Bates must have been
in and around this Court House for
some time. Tolbert, also, was in and
about this Court room, and they were
all discussing this thing, be it true or
false. Now, the defense have active
counsel, yet neither they, nor the father
nor the brother of the defendant seem
to have known anything OF this thing,
nor have they an affidavit here, setting
forth this knowledge, II any. Yet,
strange to say, John Garrison is the man
who rode fifteen miles to serve that
subpoena. We asked Col. Arnett
who gave him his informa-
ton, and he said he couldn't recol!ect.
But he knew it at the time he got 1t,
vet he didn't go to the Court, as was the
case in the Strauder case, and open it
up, that the Court and the State might
know IL. The light was shut out
OF the thing, and there was no chance
of an investigation. If we could get
that man and put him on the stand,
and question him, it would be q very
important matter. 1t looks good deal
like negligence on the part OF the de-
Tense. Why, Col. Arnett, believe,
did not even tell his co-counsel who that
man was. 1t is strange, that the de-
Tense should have rested upon their
rights until after they found there was
verdict of guilty in the case.
Lester Bates was here on the 10Th,
and discussed right in front OF this
Court House the matter. He was in this
Court House; Tolbert was here. Col.
Arnett asked questions pertinent to the
Robinson matter before the jury was
sworn, which, l say, must have come up
from information; there were discus
sions as to RObinson's fitness to be on
the jury; McConn stated he discussed it
with man who had been off the jury,
and said he did not think man who
would do that was fit man to be on the
jury; McConn talked to Bates about it,
and Bates said he didn't know anything
about it, except that Dolph Tolbert
told me- Now, some one told Colonel
Arnett about this, and I'm
trying to get at who it was. l think
have an idea. No one said anything
about this except McConn, Dolph Toll
bert. Lester Bates and his wife and the
boy Richmond. II anybody knew any
thing about it, IL must be narrowed
down pretty near TO that limit. Robin
son was questioned by Col. Arnett in q
manner most peculiar; no other juror
was asked thUse questions in the way
Robinson was, and when you connect
that with the fact that Tolbert was in
town, and is the only man who was ac-
tive In this matter; connect that with
the fact that this case ended on the 27th
at noon; connect that with the fact that
Tolbert lives fifteen miles away, yet he
is here in twenty-four hours
after the case is ended; con-
meet that with the fact that
Col. Arnett and Mr.. Somerville were
on the train before p. IN, onsthat day;
connect that with the fact that when
the verdict came In, Col. Arnett stated
his application for a new trial, and al
legged that jurors had made statements
connect all these facts, and others,
and then say that due diligence was
shown, or that they did not know who
| brought in the information These
cases here in the books say the Court
| must be treated fairly"
The Captain read the affidavit filed by
the defense on the motion for new
trial, in which it was alleged that dur
ing the trial affiant did not know aught
against the jury, but that "all of the
facts came to atlantis knowledge after
the verdict OF the jury had been rem
| dered.
Now, take that with the fact that
Col. Arnett, Immediately after the rem
dition of the verdict, before he had
talked with Tolbert or any one else, rose
and stated as his grounds for new trial
the very reasons he assigns in his afi-
davit, which is sworn TO, and which
states no fact were known until after
the verdict was rendered. He assigned
the very reasons, cut of hand, which he
alleges he did not know until after
wards. Then the affidavit goes on to