Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1892-02-26

after a conference with Judge PAUL, he
was able to announce that the case
would be docketed for April 25th. This
was satisfactory TO all concerned, and
the order was made TO that effect
1t was then announced by counsel for
the defense that tomorrow morning
they would make a motion to admit the
prisoner TO bail. Some OF the members
Of the bar, commenting upon this mo-
tion, were of the opinion that it would
not properly come before Judge Camp
bell, as the case had now passed out OF
his hands into the care and supervision
OF Judge PAUL. or that, we shall prob
ably hear something tomorrow.
Counsel for the defense were natural
ly much elated at the decision of the
Court, setting aside the verdict.
Following is the full text OF the
opinion Of the Court:
State Of West Virginia
George l. Garrison.
Indicted for the murder Of DR.. George Baird.
Tried at the April term, 1891, and found guilty
OF murder in the second degree. Motion to
set aside the verdict, ETC.:
The grounds urged by counsel for setting
aside the verdict may be stated as fellows:
l. In permitting Juror Bell, after he had
been examined upon his UOir dire, and found
to stand fair, to plead his privilege OF eX-
emption in being over sixty years OF age.
Under Chapter 10 of the Code which pre-
scribes who shall be liable TO serve as
jurors, the Court has no authority to COM
pei person over sixty years OF age, when
claiming privilege, to serve as juror. Set
. to- nefd 10 a vol &c NO
ting aside verdict, if one equally uuobiec-
tionable is added. The prisoner is entitled
TO twenty qualified jurors, from which the
Jury of twelve are TO be selected.
Another ground is admitting the testi-
mony of Mrs. Baker as TO what the deceas-
ed said :-"Garrison shot me. Close the
door, This conversation occurred within
a minute or two after the shooting, and
within a few steps of where the homicide
occurred. The evidence is within the rule
of res jestD. At any rate, it could not affect
the verdict. and was unimportant, as there
was no question as 10 the fact that CARR
son shot DR.. Baird.
Another point urged is that the Court
erred in not allowing Dr. Garrison to in
trodUCe declarations as to the shooting
claimed 10 have been made to Dunlevy and
X reiIer, shortly after the shooting, at the
corner of Market and Eleventh streets, in
order TO contradict the testimony OF
Armstrong as TO what Garrison
said 10 him about the shoot
ing, Immediately after the homicide, when
ne met Garrison at point on Eleventh
street a considerable distance above where
Dunlevy and Kreiter met him, they not
being present, as sworn 10 by Armstrong.
There is failure TO Identify the converse
tons as one and the same conversation, but,
on the other hand, the evidence of defend
ants own witnesses shows, or tends 70 show,
that Armstrong was not present at the
conversation they (DuQlevv and kreiter)
had with Garrison, and therefore nothing
said at that conversation could be regarded
as evidence in contradiction Of what Arm
strong had sworn TO.
Another exception is that George w.
Robinson was permitted TO testify in re-
buttal in contradiction of something DR..
Garrison was not permitted TO introduce
when he was examined as a witness in mis-
own behalf in regard TO an anonymous let
ter which was introduced as part of a
conversation with w. G. Beans, had by DR..
Garrison. The record shows that DR.. Gar
rison, in his cross-examination, volunteered
statements in regard to his belief and
knowledge of that letter. which clearly
made Robinson's testimony as TO the letter
proper rebuttal.
And lastly, let US consider the question
Of the bias and prejudice of the jurors,
Evans, Schmidt and Robinson, and express
Sions of opinion made by them.
First, let us briefly summarize the law
bearing upon these questions. The doc
triRe is well settled in Virginia that as TO
any irregularly or misconduct of juror
before he is sworn or impannelled the pre-
sumption of law is that the prisoner is not
injured, and the burden Of proof is upon the
party alleging such irregularity or mis-
conduct, 10 prove by a preponderance Of
evidence that injustice has been done him,
and as 10 any irregularity or misconduct
on the part of a Juror after the Jury is
sworn, the presumption is the prisoner has
suffered an injustice, and the State must
prove beyond all reasonable doubt that the
prisoner was not injured by the Irregular
" or misconduct.
In the State V. Mcdonald, 9 w. Va, the
Court, quoting from Jones case, 1st Leigh,
says:
when the prisoner excerpts, after trial, for
cause existing be ore the juror ected and
sworn, Il Is matter addressed 70 the discretion
Of the Court; In the exercise Of this discretion.
the Court ought to consider the whole case, ami
be satisfied that Justice has been done, and ii is
said tina. Ia applying this rGle, the Court re-
CARDS with extreme jealousy all attempts to set
jurors, existing before they were sworn: and
that verdict will not be disturbed for any
such Cause, unless Il appears TO have operated
so as TO iniiict injustice upon the prisoner
The Court further says
at is the duty OF the Count TO see that the
prisoner has IA trial by an impartial jury, and
unless the curt was satisfied with ali that a D.
peared before 1t, that the prisoner I'D such a
trial, 1t was the duty OF the Court 20 set aside
the verdict"
The Court in the case Of the State V.
Greer, - ". Va, 500, quoting from the
case of Commonwealth V. Flanagan, Z
Watts & S, AS, says:
THE expression Of an opinion by Juror with
regard 10 The guilt or Innocence OF a defendant
before he, the juror, is called to the box is u
good cause OF challenge, Bat after trisl il is
not = sufficient cause for granting new trial
Ii juror had preJudged case, having his
mind unopen 10 conviction, il would be good
cause 10 set the verdict aside. Preiudginy and
giving an opinion are very different
things. The first implies = strong disposition
70 favor one side or the other a determination
70 find in one way, let the evidence be what II
may. The last Involves the truth OF certain
facts and propositions in the sentiments de-
livered, and the impresSio thus made may be
ehaced bv the production OF other evidence.
The 5rst involves charge OF gross misb -hayior
on the part OF juror, who consents 10 serve on
jury when he must know lie has preiudced
himself from forming Just judgment by a
preindication OF the SEA determination to
decide, right or wrong. in = particular way