The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1892-04-29
THE STATUTORY QUESTION

~~s tAS kuSu
Against tho Plea of tho Defense.
Before being sworn, tho qucstion us
to whether any Of them were opposed
to capital punishment was not asked
the jurors. That tho state did not
press the asking Of this question does
not indicate that it has given up
the hope OF convicting the defendant OF
murder in the first degree. During
Il lull in the examination of jurors,
when the court signiiled its willingness
to listen to tho arguments OF counsel on
the plea filed by the defense, Prosocu.
ting Attorney Howard offered u lengthy
argument opposed to the claim OF the
defense.
Mr.. Howard led off by saying that
while actions OF the law.making bodies
were not adjudications OF courts, yet
they tended to show the trend OF mind
on the part OF lawmakers. The courts
OF Virginia had lodged tho question
until the legislature came to their as-
sistance and took the matter out OF
their hands.
In the case OF Livingston vs.. Com.
monwealth, 18th Grattan, page 592,
Judge Daniel, OF the court OF appeals Of
Virginia, had written NJ opinion in
favor OF the defendant, asking his col.
leagues to send the case back to tho
jury, with instructions that the defend.
ant could not be tried again for murder
in the first degree, but must be tried
for murder in the second degree, the
first trial having been a mistrial. The
other two judges refused to concur in
Judge Daniels opinion in face OF Judge
Daniels strong argument on the op.
posite side.
This case, Mr.. Howard said, was the
only Il that the court should take into
consideration. In the Stewart case, IS
Grattan, the court had only.
DECIDED THE OLD RULE,
that, where a verdict OF guilty was rem.
dered on only one OF the sew eral counts
in an indictment, it was equivalent to
verdict OF not guilty on the other counts,
and that, when the case came up fol
trial again, the trial could be only on
that count OF the indictment upon
which the former jury had found the
defendant guilty. But where, as in the
present case, there was only one count,
which included all the lesser degrees,
the trial would have to be OH the orig.
inal Indictment. After some argument,
Mr.. Howard claimed that the last trial
had been a mistrial; the defendant was
entitled to a trial by twelve competent
jurors; no had only eleven, and Judge
Campbell took that fact alone into con.
s%ideration, and upon that alone granted
q new trial. In. referring again to the
Livingston case, Mr.. Howard said that
the legislature shortly after had passed
a law directly opposed to the defend
ants side OF the case.
In the case OF Morris vs.. State, LIST
Blackford, Indiana, page 81 d case de
cidcd in 1919, and one which had been
followed in the courts OF Indiana, Mr..
Howard continued, the plea; had been
decided against the defendant. He also
quoted other cases, one OF which was
i'll the oath Northwestern Reporter V
The Florida case, 9th Southern, page
POS, Mr.. Howard continued, was the
only, case he could find in which tho
courts decision favored tho %dcfondant's
side. Mr.. Howard closed his address
after producing as authorities Living
ston vs.. Commonwealth, l4th Grattan,
592; Morris VS.. State, !. Blackford, 81;
Veach VS.. State, GO Indiana, 29l; Beh.
mier VS.. State, 20 Ohio, 572; Arnold VS..
Commonwealth, lS3 Kentucky, l; Nc.
Cord VS.. State, 8 Kansas, 232; Bohan.
men vs.. State. IS Nebraska; 81. 24N.&W