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

of the terms as shown in the Greer case.
II now want to take up in the regular
order in which this case has been dis
cussed heretofore the various points dis
cussed. The first Of these TO which st,en-
ton was called By Mr.. Sommerville is the
excusing Of the jurors, Baird, Bell and
Chambers, on the ground that they were
over sixty years of age. The question is,
was ii error in this Court 10 excuse the
jurors named. OF course il is very wei
understood, in cases Of this kind, that IN
the haste and hurry OF trial the Court may
not give that full investigation sometimes
required, and will thus make error; but II
that error be afterwards shown the Court
will make correction by reversal or other
wise"
The Colonel reviewed the circum-
stances of the excusing of the three
jurors named, and made the claim
previously advanced by Mr.. Sommer-
had the right TO elect to plead age, If
they failed TO do so at the proper time
they could not afterwards do so, but
must serve. He dwelt with especial
circumstantiality' on the facts referring
TO Juror Bell, and the conversation be-
tween the Prosecuting Attorney aud
Mr.. Bell, upon the occasion when the
latter, addressing the Court, referred to
his being 'keelhauled," and said the
Stateihad driven Mr.. Bell from the box
by virtually insulting him.
when he was excused, an injustice was
done TO the defendent The other side say
this is not ground for reveral. We think
IL is. The theory of the State is that any
twelve men who stand fair, will answer
the purpose. That is not true. Ii, in the
blind happenings OF Fate or the clear-c
purposes Of an Omnipotent God, twelve GER
tain men come into the box, the detendent
is entitled TO them. If this is not true,
men may come and go from the jury box
without limit Of course, we, nor any
one, can say what the verdict of three ex-
cluded men would have been. but no one
will question that they stood fair, and
were intelligent men,
In support of his pos tion, Colonel
Arnett referred the Court to State V.
Anton Holme, 81 No. Mr.. Howard, for
the State, objected to the Introduction
OF the authority, it not having been In
troduced by Mr.. Somervlle, who, it was
understood, would bring forth all the
law to be used in the argument for the
defense, and further be objected TO the
subject OF the rejection Of the jurors, IL
not having been referred TO at much
length by Mr.. Somervile, and the tacit
understanding being that no weight was
TO be attached TO that point. 1t was
eminently unfair, and il IL was to be al
lowed the State would claim the right
TO reply and introduce other authorities.
This stand being taken, Col. Arnett
withdrew the authority, saying he
would not DO anything which would
tend to reopen the argument, but he
imagined the Court would want all the
light it could get on the subject.
The Court said it would allow all the
citations either side might see TIT to ad-
duce, and with this understanding the
Colonel read the authority, and argued
upon il that the defendant had an in
terest in the jury, and might see the
list, and when the list was exhausted
aud talesmen were brought, the right
still continued, and to allow men to
have the box and install others was er-
ror.
THE Jury called and first found TO be
qualified, was the one by which the defend
ant was TO be tried. If the reverse was
true, the whole panel might be set aside,
and another substituted, aud then say, on,
you have no right to complain; you're not
hurt. It's fair jury These
men would not have exercised their cleo
ton if they had not been driven TO II. Here
we had the spectacle OF honest and honor
able men OF this city, absolutely driven
from the jury box by tan insult deliberately
offered them. The ground for reversal s
ll,,a IN al | IL
nit this Court or the Appellant Court, when
It comes to see the manner in which these
men were driven from the jury box,
will say, it is error, and you have
right TO a reversal. - III this rule is
10 obtain. the Prosecuting Attorney can
break up every panel put into the box.
ANY mau OF delcacy OF feeling
would have said, i won't stay here and be
insulted If there is any earthly manner
in which l can get away, ! am going
The device resorted 10 by the State was
most extraordinary
He.then passed TO the Questions'put
TO 81. Garrison as 10 what he had said
on coming from the scene Of the shoot
ing, and the questions put 10 witnesses
as to what DR.. Baird had said when he
entered Prayers store, after the shots
were fred, adverting 10 the grounds
upon which the Court admitted the
statement Of the deceased. The state
ments made by DR.. Garrison were made
at about the same moment OF time as
that of DR.. Baird, and if the former
evidence was admissible so was the lat
ter.
'If IL was not error to admit the state
ment Of Dr. Baird il was certainly error 10
not admit the evidence Of DR.. Garrison"
The motive of the Court, as previ-
viously expressed, was that the deceased
must have known he was in crtremts, to
which Col. Arnett said he had replied
that then the statement ought to go as
a dying declaration, and not as part
of the reSiestd.
at was properly question for the jury.
If one was admissible the other surely was,
and the Jury ought TO have been allowed TO
decide They might have believed one and
discredited the other, and they ought 10
have been given the opportunity 10 weigh
them. If they had the one, they ought 10
have been allowed TO have the other. be-
lieve the declaration of DR.. Baird was
mere narrative of past event, and not ad-
MISSILE, but if il went in, IL was surely
error 70 exclude the statement OF DR.. Car
rison, Tor the latter was made at almost
the same moment. Their intimacy in point
of time was close. There may be differ
ence in weight here may be decided differ
ence in degree, but the principle IS the
same"
The next point adverted to was the
fact that DR.. Garrison never was asked
If communication was received by
DIR. Garrison from the United States
authorities to the effect that the letter
rnceiueh hr DIR Garrison was from DIR.