Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1892-02-12
forever disoualify him for such service. ;

tuOSc loCeS WHICH WUuiu Uideb uiu ID q
juror and a citizen. Those only he
evaded or denied. He admitted of be-
ing in the neighborhood of the shooting,
Of his talking to d. z. Tolbert, etc., and
went on to say that Tolbert and the
others had no possible reason for swear
| ing falsely against Robinson. Collat-
eral matters, as to motive or lack OF
motive on the part of Bates, Tolbert
and others, were gone into pretty fully.
and a very bad case as to Robinson was
made out. These men were not the
! friends OF DR.. Garrison; they were
not even his acquaintances. But
they were the friends Of Joseph W..
Robinson. Will it be said that the
friends Of Robinson conspired against
him in favor of Stranger"
Going on, Mr.. Sommervllle alleged
that the jury had been packed, disclaim-
ing, in saying that, any reflection upon
any official. 1t seemed certain that the
case had been prejudiced, and that three
or four men had gone into the jury box,
determined that the defendent ought to
be found guilty and punished.
Mr.. Sommerville then read from the
REGISTER of March 26, 1888, the sum-
mary OF Judge PAUL, in the Baker case,
as to the duty of jurors, as follows
"E'rom the cases decided by our Courts,
reduce two general rules in relation 70 In
iuries in criminal cases.
~. That as to any misconduct OF Juror
before he is impaneled, the presumption OF
law is that the prisoner Is not injured, and
the burden Is on him to show that he has
suffered injustice.
''2. That misconduct on the part OF
Juror after he is sworn, raises the presump-
tion that the prisoner has suffered injustice,
and the State must prove beyond reason
able doubt that the prisoner was not in
iured by such misconduct"
Capt. Dovener-Now, where does that
apply in this case.
Mr.. Sommerville-The Court knows.
Capt. Dovenor-But don't. would
like to know, for my information, what
there is in this case, after q juror was
sworn, to which that applies. To which
juror does it apply?
Mr.. Sommervilie then went on to
explain that the rules read applied to
Juror Robinson, and there could be no
question upon it. He also cited State
v. Greer, 90 w. Va, where, he claimed,
Iut WuUlo uOCUIiuO III ShIA iuobbSi -
was summed up, and then read the
twenty-iirst and twenty-second points
in the syllabus, on page 500, as follows:
800 A new trial will not be granted in a
criminal case for matter that is principal
cause of challenge to juror, which eX-
listed before he was elected and sworn as
such Juror, but which was unknown to the
prisoner; until after the verdict, and
which could not have been discovered by
the exercise of ordinary diligence, unless
it appears from the whole case that the
prisoner suffered injustice from the fact
that such Juror served upon the case.
"2l. The plain meaning Of the words,
unless it appears from the whole case,
that the prisoner suffered injustice from
the fact that the juror served upon the
case,' is unless it appears from the
whole case as shown by the evidence sub
mitted to the Court, land not from the
evidence before the jury that the prisoner
suffered injustice from the fact that the
Juror served upon the CASE In such case,
the trial Court, upon a motion for new
trial, upon such ground should look into
the affidavits and other evidence 10
sustain the motion, and also the evidence
to defeat it, and from that determine
whether the juror, who had before the
trial, expressed his opinion as to the quit
of the accused, had expressed such opin-
ion from partial knowledge Of the case,
but that his mind was really unbiased, so
that he could impartially try the accused
upon the charge, or whether he had pre-
ildeei the case, and was determined to find
MIN guilty without regard to the evidence.
And if from such evidence II should appear
that the Juror had prejudged the case,
the Court would assume that the prisoner
had suffered injustice by reason OF such
Juror trying his case; and it would De the
duty of the Court under such circumstan-
ces, to set aside the verdict and grant
new trial: and if the motion were oyer-ruled,
the appellate Court on writ OF error would
reverse the Judgment, set aside the YER
dict, and grant new trial for such cause
Summing up his argument, Mr.. som
merville said that when the action OF
Fisher was added to Evans, and
Schmidt was added TO the other two,
and Robinson was added to the three,
the conclusion was enough to shake all
confidence in the jury and to determine
any fair mind that the case had been
prejudged and that there ought 10 be
new trial. The case was stronger one
than was brought out in the case OF the
Juror in the Van Baker case, and there
new trial was OIueItu uuu OO'o'hN'
The case seemed to be of the strongest
possible nature; as to Robinson, it could
not be strengthened. The evidence
against him, given by four unimpeached
and uncontradicted witnesses, was
overwhelming. 1t was a pre1udged
case, and the defendant sat in Court
found guilty by perjured jury, mem
beers of which were in the box, not to
mete out justice, but to wreak ven
geance upon some one.
At the conclusion OF Mr.. Sommer-
ville's speech, he having taken up an
hour and twelve minutes, the Court an
pounced that he was disposed TO limit
the arguments to two-and-a-halt hours
TO a side, but the State so strenuously
objected to any limitation that this limit
was first extended to three hours and
then removed altogether.
Court will reassemble at $3.50 THIS
morning, when Prosecuting Attorney
Howard will speak.
POLITICS AND BUSINESS.