The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1892-02-26
EyRCJTT rR IEIgS

sidored as, modified and controlled by
tho affidavit Schmidt himself makes In
this case. Think thero' was a msun-
derstanding on tho part OF Mr.. Bruhn us
to what Schmidt said, and tho affidavit
OF Mr.. Nick. Sims was entirely too gen.
eral and indefinite In Its statements.
Even II both atlldavlts wore true, thoy
do not show that Schmidt had formed
fixed opinion or that no had prejudgcd
the caso aud was biased and prejudiced,
and that when no answered on his volr
dire that no could not say whether or
not no had formed or expressed m
opinion, bu. II he had 1t was not strict
opinion, md no would decide from tho
evidence alone, lo answered truthiully,
and WAS a competent and qualified
juror.
As to tho Juror Evans, admitting tho
truth OF Russells affidavit, 1t shows that
tho opinion was not fixed opinion,
and certainly in tho light Of tho cross
examination oil Mrs. Francis Martin, her
affidavit should be received with d
great deal oicaution, and tho positive
statements OF Evans as against her
statements should doubtless DO ac-
copied.
think that under the rule laid down
in tho light OF the decisions OF our SUI
preme court OF appeals cited, ns we'll as
all tho leading Virginia cases, that oven
II 1t Is admitted that tho opinions OK
pressed bv Schmidt and Evans woro so
expressed by them "a iaot they fully do.
NY, they wero not positive, opinions or
projudgmonts Of the case, and in no
way disqualify them as Jurors.
And applying tho Same rulo TO tho
statements alleged to be made by tho
juror Robinson to Bates and his wlfe on
tho Tuesday night following the homi-
eide, oven admitting them 10 be true,
as testified by Bates and wife, I do not
think they would warrant tho court in
saying that the Juror had a fixed opinion
or had periudecd tho case.
That Is to be considered In connec-
ton with the fact that Robinson him
self denies that statement. Counsel, l
apprehend, would hardly expect me to
comment on the testimony OF the wit
ness Richmond.
Now let us come to tho alleged inter-
view and conversation. between Juror
Robinson and T. B. Tulbert on May 5 at
the intersection OF Market and Eleventh
streets. in this city, tho day after Rob-
inson had been examined on his roir
dire; had been tried and tested and
found to stand fair after most pointed
and explicit examination and cross-ex-
animation. In obedience to the sum-
mons OF the court he had been called to
very grave and responsible duty. The
sense Of responsibility in connection
with this duty would naturally weigh
heavily uponhim andimpress his mind.
After he had been examined and ac-
copied by the Court as q juror, good and
true and impartial, and having been
cautioned by the Court, with others,
while he was absent from the court and
during Its recesses, to have no converse
tion with anyone in regard to tho case
nor permit anyone to converse with him
in regard to it, this juror, during recess
OH May 9Th, had conversation with
Mr.. Talbert. What that conversation
was Is perhaps hard to determine.
From the examination OF Mr.. Robinson
it appears that thero was some conver-
sation, however, in regard to tho case,
limited and meagre Us it may be-.
Mr.. Talbert swears that on that occa-
sion Robinson, in speaking Of the pris-
oners connection with the homicide,
used the revolving and opprobrious Ian
guage which will not quote, butwhich,
if used, shows at that time in the mind
Of thoiuror deep seated and malig-
nant bias. This specific statement Mr..
Robinson denies, in fact, denies that he
used any language showing bias or ex.
pressing an opinion.
He was not yet elected and sworn as
juror, but no was on the border line
OF it. He had passed tho ordeal and all
the tosts Of qualification, and was &C.
copied Us one OF the twenty talesmen
from whom the triers OF this man were
to DO elected and sworn. ~
In the light of these fncts, standing
SO close upon the threshold OF the
panel OF twelve, may 1t not be APPLY
claimed that the burden Of proof shifts
and that the state should satisfy the
court beyond all reasonable doubt that
this jury stood fair and impartial
Without passing on that question, let
us consider another phase OF the cR5s
So far US appears before me in the evil
dcnce submitted, Talbert and Robinson
arc men OF equally high standing for
truthfulness and uprightness. Neither
OF them in this respect has been assailed,
and yet am confronted with tho posi-
| tive contradiction OF the one to the
other in regard to statement material
il not vital to this motion. Within the
prescribed rules and limitations laid
down by the authorities, let us apply
the tost that would measure and de-
terminc the truthiuncss OF the respec-
tive statements.
The authorities SOY that the sworn
statement Of the juror in support Of
his verdict should be received with
great caution. In the language OF the
books
offered to Jurors to explain or excuse Irregular.
tiles In their conduct Is very great II they nd.
nit misconduct they nre liable to consure or
perhaps 10 tine; consequently they ore moro
likely 70 deny than to admit thGt their verdict
was Influenced By any misconduct or impro-
prlety.
After this conversation between Rob-
inson aud Talbert juror Robinson, in
common with the other jurors, between
tho ti,ne OF this conversation and tho
following Saturday when the Jury was
struck, had been asked several time if
they or any of them had had any con.
vorsation or had permitted any one to
converse with them in regard to tho
case. Juror Robinson says in his cross
examination that whom l asked TINT
question collectively no had remained
silent, but admitted that no knew the
court accepted his silence as an atIirma-
tive answer that he had had no COR