The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1892-05-05

tho defense in tho Garrison homicide
case, claiming that DR.. Garrison could
not be tried second time for murder
In the first degree, the jury having de-
clared him innocent Of the crimo he
was indicted for by finding verdict Of
murder in tho second degree. His
honor announced his decision on
the plea just before court adj
iourned in tho evening. As a result
Of his honor's ruling tho jury will con-
slider, in endeavorin2 to arrive at ver-
dict, no crimo OF = higher grade than
murder in tho secoad degree. Though
oil course the attorneys for tho defense
had all along claimed there could be no
other decision than the ono arrived at
by Judge PAUL, thoir pleasure over the
successful result was evident. This is
the first time this ruling has been made
in this circuit, and tho following full
report OF the learned judges opinion
will be read with interest:
The sole question for decision in this
case, Judge PAUL said, is, whether the
accused, who, at tho April, 1891, term OF
this court, was convicted OF murder in
the second degree, on an indictment tor
murder, and who obtained new trial
because OF the misconduct OF a Juror,
can again be tried for murder in the
first degree.
In II Am. & Eng. Encly. of Law, 03O
it is said: Where greater oi!ense in
cludes lesser one, being placed in
jeopardy under an indictment for the
included oIense only, constitutes q bar
to a prosecution for the greater .oifonse;
go, upon q trial for the higher grade OF
an otrense consisting of degrees, if the
defendant is convicted OF IN inferior
grade, such conviction operates as an
acquittal of, and will bar subsequent
prosecution for any OF the higher
grades; and where such conviction is
reversed and new trial ordered, the
new trial must be confined to the par
ticular charge upon which the defend
ant was found guilty on the former
trial"
SOME OF THE AUTHORITIES.
His honor then said that the princi-
pie above quoted is supported by the
following, among other, decisions: State
v. Joseph, So. 4O5 Ua. Jones v. State,
10 Tex. 1853; Slaughter v. State, 6 Humph.
40; Johnston V. State, 8 So. Ella. 20S:
People v.aGilmore, Cal. 376; People v.
Apgar, S5iCal. $50; Brennan v. People,
10 III. OLE; Hurt v. State, % Miss. 37S;
Johnson V. State, 90 Ark. 81; 81 Am. r.
154; State v. Ross, 90 Mo. 80; State V.
Brannon, SIS Mo. So; State v. Tweedy,
II Iowa $50; State v. Belden, 80 Wis
30.
In State We. Bclden, after stating the
principles as above announced, the
court says: 1.-THE authorities in OBJ
position to this view, and in support OF
the doctrine that the effect OF granting
q new trial on the application OF the
defendant is the same in q criminal as
in civil case, and opens the whole
cause for retrial upon the same issues
as on the first, are collected in the case
OF the State vs.. .Behimer, 20 Ohio st.
672. 1t seems to us, however, more in
harmony with tho
HUMANE MAxIMs OF THE CRIMINAL LAW
and the principles OF the constitution
to hold that the finding of the jury ac-
quitting the defendant OF the higher
offenso was IN adjudication upon that
charge, and that legal effect should be
givon to it'as such, while tho new trial
should BIO limited to the lower degree OF
homicide OF which he has been con.
victcd." u
This, 1t seems to mo, Judge PAUL.
said, is the true doctrine upon tho sub
ject under consideration, especially as
it is believed 10 be in accord with the
express provision of the constitution OF
this state Cart. ), sec. 81 that no person
shall be twice put in jeopardy OF life
or liberty for the same oifanse''- pro.
vision, which, as was said by Judge
Green in Moundsvillc v. Fountain. q
w. Va, 19l, should be literally con.
struod sin favor of the person whose
life or liberty is twice put in jeopardy"
NO VERDICT ABOVE SECOND DEGREE.
Now, in order to give this provision
liberal construction, it must Of necessity
DO held, that George l. Garrison, having
been once acquitted of that portion Of
the charge against him which placed
his lilo in jeopardy, namely: murder In
the first degree, cannot be tried for that
portion of the charge.
But there is another consideration
which leads to tho same conclusion: In
Stuarts case, IS w. Va. $50, Judge
Staples, in delivering the opinion of the
court says: 1T is we'll settled law in
this state, that where there are several
counts in an indictment, and tho Jury
find the accused guilty upon one OF the
counts, saying nothing az to the others,
: tho verdict operates Us an acquittal upon
the counts OF which the verdict takes no
notice, and the court should enter a
judgment accordingly. Lithgow V.
Com. Eva. Cas- 297; Page v. Com. 8
Ecigh 6S3; Canada's case, 90 Graft. 500;
Pages case, 26 Graft. 943. 1t may be
regarded rs equally we'll settled, that in
such n case, il the accused applies for
and obtains a new trial, lie does not
thereby waive the advantage OF
tho acquittal thus obtained. But
no must DO tried, and can only DO
tried again on tho counts on which he
was convicted, and not on tho counts OF
which he had been before acquitted"
~ Indictments like the one in this case,
Tor the purpose OF enabling the state to
convict the accused, arc construed as
containing what is tho equivalontof FIVE
separate and distinct counts, namely: :
MURDER IN THE FIRST DEGREE, II.
murder in the second degree, voluntary
manslaughter, involuntary manslaus CHIT
er, and assault and battery. And it
seems to me that every principle OF
rirht md instira domnni Al nt tLna