Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1892-02-16

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will not grant new trial unless he IND
the defendant has been injured by what
Robinson is alleged TO have said. Unless 1t
appear, Don the affidavits presented, that
the defendant has suffered injustice, and
not upon the testimony taken at the trial,
the Court will not grant new trial Inc
defense has not claimed that the defendant
has suffered injustice through the miscon-
duct of certain jurors. They certainly
made a stronger case against the Juror
Chamberlain than against the Juror RoO-
inson. Chamberlain had been on the grand
Jury and was disqualified rs juror. There
is no presumption OF injustice In ROBIN
sons case, because the defense only allege
misconduct before serving on the jury:
The State relies entirely upon the ground
that injustice has not been done the defend
ant. The alleged misconduct OF Robinson
was before he went on the jury"
Mr.. Howard then thanked the Court
for the patient hearing it had given the
State, and asked the same for the de-
Tense.
COL. ARNETT's ADDRESS.
Col. Arnett then said that he would
briefly 90 over the matters that had been
discussed, except as to what the State
naQ presented JliS mOTulHR'
MIR Howard said that no injustice
could be complained of, even if the highest
verdict had been returned Your Honor,
we differ radically from the State. A
change has come over the spirit of their
dream. We claim that new trial must be
granted il the law is 10 be complied with.
Your Honor is TO determine the motion for
a new trial on the evidence produced TO de-
feat the motion. II from the evidence it is
shown that a juror had prejudiced the
case, the Court will presume that injustice
has been done the defendant and will grant
him new trial"
Col. Arnett then cited number Of
cases bearing out his position.
'sIf Your Honor believe that Juror Rob-
inson preiudiced the case, Your Honor is
bound 10 grant new trial The rule OF
law by which the Court is to be governed
is that the trial Court viii look into the
affidavits, and if it appear that juror has
prejudiced the case, the presumption IS
thar injustice has been done the defendant,
and the Court will grant him new trial.
If it appear that the juror has expressed
very decided opinions, and that those eX,
pressions were made very recently, and
the Court is OF the opinion that the juror
denied having expressed any opinion as 10
the guilt or innocence OF the accused in
order 10 get upon the jury, then the pre-
sumption is that the defendant mas sustain
ed injustice.
al know that my friend, Mr.. Howard,
must be miserable after the sommersault
taken by him this morning"
Here Mr.. Howard objected TO counsel
making personal illusions, saying that
Col. Arnett intimated that he had
changed his position on the case, as it
might miSlead the Court. He didn't
want the Court 10 misunderstood the
position OF the State, and therefore he
had given the Court its position in writ
ing. Col. Arnett proceeded:
1.-THE evidence produced before the jury
has nothing TO do with the preiuaication OF
the case by juror.
"There are two matters to which / want
to call attention. Capt. Dovener frequent
" said that this case was to be tried ac-
cOrding TO the law. and not newspaper re-
ports. / did not think at first that | was
referred TO in the remarks of the Captain.
He said that / had received a telegram from
your Honor while your Honor was sick at
New Cumberland. / regret that Captain
Dovener is not here this morning. These
statements he made were uttered with the
intent to create prejudice against counsel
for the defense. He said that / talked
about this case to newspaper reporters.
All that | ever said TO reporter was that
your Honor would be here TO sit in this
case on a certain day. 1t was stated in a
newspaper that several attorneys express
ed the opinion that new trial would
be granted in this case. / know
nothing about that newspaper article.
,,rdnrcfpOd that pavpr MAY tn
the grandstand, and don't know that my
friend Capt. Dovener) can be put in that
light.
''Now, Your Honor, don't know of any
case, in this State or the mother State, Of
this character, which was tried by any
thing but the aflidavits. There have been
cases in communities in which there was
great excitement, where parties have re-
fused to make affidavit. l don't want TO
give in testimony, but some Of the affida-
Wits taken in this case were very difficult
to obtain. / believe the main question
will be adiudged on the affidavits taken In
this case. An important significance is 10
be attached 10 the affidavits in this case,
which are now before Your Honor"
At this point the Court made per-
Sonal statement. The Judge said that
there was talk about the case being
tried In the newspapers.
During my long illness the counsel in
this case were naturally anxious about the
resumption Of the trial. had visits from
counsel for the defence, but at no time did
/ express any opinion as 10 the merits Of
the case. The counsel were anxious for en-
early hearing and came 10 see how was.
attach no Importance to these newspaper
articles. My mind was willing, but my
body was weak, and could not come down
to try the case before. Counsel did not
even make any inquiry as 70 my opinion of
any phase Of this case.n
The Court then stated that he was not
disposed to limit counsel In their argu-
ment. Here the Court adjourned until
100.
AFTERNOON SESSION.
1t was announced the afternoon ses-
sion Of Court would convene at 100
o'clock, but 1t was almost when Col.
Arnett arose to continue his argument
on behalf of the motion.
He began by saying that at the morn
ing session he had taken up out Of order
the question of what was meant by in
jury to the prisoner, having done so
because il was the last point made by
~ l.. La - ..,orr