The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1892-02-26

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court must DO satisfied from all tho owl
denco before It on this motion that tho
prisoner had fair trial by an impartial
jury of bis poers, and so far rs practica-
bio to allow no suspicion Of unfuirness.
Just principles should not be disrc-
gardod, and the court should be able to
conclude to Its entire satisfaction that a
citizen on trial for murder has had o
falr and impartial trial, and that how
ever just the verdict might be, there
shall BIO no conviction OF citizen OF tho
state and republic without such FUR and
impartial trial.
Accepting tho evidence Of Tnlbcrt as
against that OF Robinson am not en-
tirely satisfied That the competition OF
that Jury such as to give the prisoner
fair and impartial trial. Therefore
the motion to set aside tho verdict and
grant tho prisoner a new trial should be
granted, providing it appears to tho
satisfaction OF tho court that the prisoner
and his counsel used duo diligence to
ascertain tho evidence OF Tolbcrt, and
were entirely ignorant OF such interview
and conversation between Robinson and
Tolbert until after tho verdict was rem
dered.
On Saturday, tho 9th OF May, the day
tho jury was elected and sworn, on tho
fnm examination OF Robinson or his
voir dire, Col. Arnctt asked this aigniil.
cant question:
"Tho day you were summoned and mr.
raigned here, doyou remember whether
you had expressed an opinion or said
anything about itT
This question shows that counsel had
information OF some conversation, or
supposed conversation, had on that day,
or about that timo, between Robinson
and some other person. The pertinent
inquiry is, who was that other person?
1t is fair to presume that tho knowledge
Of whom 1t was, or supposed TO be, was
In the possession OF counsel. The only
person they put on the stand as having
talked on that day, or about that time,
with Robinson was Talbert. Is 1t not
then fair to presume that on the ninth OF
May counsel had in mind, in their in
quiry above, the conversation with Toll
bert, and that conversation alone? And
that counsel knew at the time that they
propouuded tho inquiry that Robinson
had, or was charged with having, con-
versation with Tolbert at that time, and
such information was In their possess
sionp
In their cross-examination counsel
for the prisoner utterly disclaim having
any knowledge directly or indirectly OF
any conversation Robinson had with
Tolbert until they ascertainod aftor the
verdict that Tolbert had information
valuable to them. I could not but con-
clude from the final examination OF
Robinson on his voir dire that counsel
had knowledge OF tho after developed
conversation with Tolbert, but they dis
avoy under oath any such knowledge,
and the record discloses their several
answers with explanations therein
given.
The prisoner has not mado q strong
case OF misconduct or pronounced bias
or prejudice on the part OF Juror Robin
son. | understand well how courts look
with diefavor on motions to set aside
verdicts OF juries upon grounds OF mis-
conduct OF jurors, and especially before
they are empannelled. Every case
stands on its own particular facts, and
no two cases arc parallel.
Courts will ecrutinizo with utmost
vigilance the composition OF iur!es. In
the case oil the State We. Schnello, oath
W. Va, the court says: If proposed
juror on his roir dire admits that he has
formed and expressed an opinion as to
the guilt or innocence OF the accused,
and halts and hesitatcs as to his condi-
ton OF mind and cannot say that his
previously formed opinion will not in
tluence his verdict. although he thinks
and believes it will not. he is an incom-
petent juror and ought to be rejected.
For that reason alone, tho proposed
juror being one of tho panel OF twenty
and not one Of tho twelve who tried the
caso, the court sot tho verdict aside.
have weighed and considered all
the evidence submitted. In tho light
OF the leading cases Of our own and the
mother state l have discussed this
evidence In the forum of my own con-
science and judgment 1t is a matter
OF the gravest importance that there
be speedy trials and prompt and vigor-
GUS administration Of the law to tho
end that the innocent should not suffer
nor the guilty go UNPUBLISHED. Upon a
dispassionate and deliberate considera-
ton OF this case am forced to tho con-
clusion that tho prisoner at tho bar has
not had trial by fair and impartial
jury. The motion to set aside the YER
dict OF the jury in this case is sustained,
and tho prisoner is awarded new trial.