Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1892-04-29
TIE ARGrMrNr OF MIR. HOWARD.


Mr. Howard opened the argument for the
State at ten minutes of three. He reviewed
the facts, and said the proposition advanced
by the defense was an unfair one in this,
that while the defendant was complaining
of a verdict for minor offense under an in
dictment charging a high crime, it sought to
take an advantage from finding of which
he complained. Where the matter had
been settled by the Legislatures OF other
States, it had been uni formly settled from
the standpoint that w here verdict for
minor ofTense was complained of, and new
trial prayed for and granted, the defendant
should stand fairly upon the original in
dictment In other words, the defendant
stood, upon the second trial, exactly where
he stood upon the first He thought that
was common sense view, and the other
allegation ought not 10 be the law. In ar
gipia, the Court lodged the issue until the
Legislature came to its relief. Mr.. HOW
ard took up the Livingston case. in IA
Grafton, reviewing the arguments made by
Judge Daniels, who took the view now
held by the defense, and said the Court de-
cidedl
FOR these reasons, the Court is Of opinion u
reverse the judgment, set aside the verdict and
remand the cause for a new trial ON the indict-
ment to be made on the indictment as II
stands, and without any change IN the usual
charge to the jury"
This, Mr. Howard claimed, was fair and
square decision OF the point by the Court
of Virginia, and as such was a good prece-
dent He cited the Stewart case IN turn,
and after reviewing it, said that although
the fact of the homicide had not been as
certained, the character and quality OF II
had been fixed. The jurv had not found
that DIR. Garrison had killed DR.. Baird,
! because that verdict had been SET aside,
and vet the defense was maintaining, by It's
! claim, that he had killed him without pre-
meditation or malice aforethought. he
then went on to argue that the verulct nao
| been set aside, because there had been out
| eleven competent jurors, when the law
guaranteed him twelve. That was mis-
! trial; he knew of no other ut characterize
ton. The relations Of verdict to evidence
were not in controversy, and dld not enter
! into the matter That being so, was the
defendant to take benefit of anything such
a Jury brought ini He thought to do so
was eminently unfair to the State. The
only common sense, fair and equitable ar
rapgement was TO have the defendant
stand, upon the second trial, Just wnere ne
stood in the first instance.
He cited Morris V. State, l. Blackford,
decided in Indiana in 1919; Wealth V. State,
Goth Indiana; State V. Beheimer, 10Th
Ohio: State " Leslie, 18th Ohio, and 9TH
ers. and in closing he said there were cases
ON the other side, notably case in 9Th
Southern Reporter, but said his view was
the rule in Indiana, Ohio, Kentucky, Ne
braska. and other States. So far as be
knew. Florida was the only State going the
other way, and there the Court seemed. to
have been impressed with the argument OF
Judge Daniels, in the Livingston case.
"But here, in Virginia, we have decision,
where the case was sent back with orders
there should be no other than the usual
charge to the jury. The Livingston case is
a binding one on our Court"
This argument will be replied to by the