Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1892-02-28
THD BAIL QUESTION
N THB GARRISON CASE ARGUED BEFORE
JUDGE CAMPBELL.
NE Motion Taken Unler Amusement - The De-
tense Takes The Ground that the Prisoner
Can Never Be Tried f,r anything Above
Murder in the Second Degree.

morning, and arguments Of counsel
consumed large portion Of the day.
The question presents some interesting
phases, as it is construed thus and so
BY the opposing counsel, and there
promises 10 be great deal Of interest
aroused In the legal maneuvering be-
fore the case finally goes to second
trial.
Mr.. Sommeryille, OF counsel for the
defense, opened the argument. He said
he could cite no West Virginia au-
thOritieS I'm the matter, as there had
been no,adjudicauOns Of the point by
the Supreme Court Of this State. Ii
was, however, a common Circuit Court
practice 10 admit 70 bail in cases
where the death penalty was not in
yolved, as IL was not in this case. Mr..
Sommeryille said he had as yet heard
no intimatiOn from the State that they
intended resisting the motion, where
upon Prosecuting Attorney Howard said
there would be an objection, aud that
the State would argue from the point
that bail could not be given. Mr.. Som
mervil.e characterized the stand taken
by the State as remarkable, and he then
proceeded, taking the ground that bail
was proper because the defendant could
not now be tried for murder in the first
degree. The verdict Of second degree
was a verdict OF not guilty in the first
degree, and his client could not be
placed in jeopardy OF the death penalty
a second time for the same offense.
Added to the undoubted right of bail,
there could be no fear that the defend
ant would not respond when his case
was called for trial.
Mr.. Howard opened for the State, and
held that bail was clearly not admiSSi-
bic. Evidence had been adduced on the
trial showing the defendant was guilty
Cf murder in the first degree, and on
TOP Of that there had been 3 conviction,
which, under the statute, barred bail.
HethOught the notion that a man could
give bail after having heard the evil
dence against himself was untenable.
The Court could only use its dis
erection Ia granting bail before cOnvic-
tiOn-nOt after the verdict Of the jury.
or the question whether or not the de-
fsndant could be tried for murder in the
first degree, Mr.. Howard said he had
found no decision upon the point, as yet,
and was not fully prepared tOdiscuss 1t.
That was a question which would come
I'D for settlement in due time. he did
not see the especial point in pressing
for bail, in view OF the early date at
which the case was set for trial.
Capt. Dovener followed Mr.. Howard
in a strong speech, taking the stand
that under the statute the Court had
no right 70 admit to bail, as there had
been a conviction, in the same Court in
which the molten for bail was made. IL
there had been no conviction, the de-
tense must stand open to trial and con-
yiction fo- murder in the first degree,
and if there had been conviction,
there could be no bail. At the conclu-
sion OF Caut. DOvener's address, Court
took a recess.
Col. Arnett began his address at 2;2O,
saving the theory upon which the de-
tense based the motion was, that In every
offense know to the law, the penalty
Of which was not death, ball may DC
awarded the prisoner. In capital onen-
ces, bail was in the discretion OF the
Court, but If the punishment was In
prisOnment in the penitentlary, or aught
else, it was the duty OF the Court 10
admit to bail. So important was
this esteemed, that IL was inserted In
the Constitution, and in the Bill OF
Rights Of the State or West virginia
He read the clauses bearing on the mat
ter, as we'll as Sec. 8, or Chap. loo Oh
the Code, and said from the language
used he deduced the conclusion that In
every case, when the punishment Is not
by death, 10 is the duty OF the Court 10
admit to bail. The amount Of bail, OF
course, was matter in the sound dis
erection of the Court, but the right
existed In the premises. He had no
doubt His Honor was familiar with the
law OF West Virginia on the subject OF
bail. In Missouri and other States all
ofFenses were bailabls except murder.
In West Virginia il has been the policy
OF the law TO avoid excessive bail, and
in persuance OF that the law which pro-
vided that bail should not be less than
81 600 II a felony, had been changed, and
the sum reduced to $500. The law
had become more liberal where
the olTense was anything less than
death. In case Of punishment
nv death. IL could only be done Tor good
canse shown. The Colonel explained at
some length the evident object OF the
law he had quoted. The defense, he
said had proceeded upon the idea that he
lad not been convicted OF murder, but
acquitted OF murder, being convicted IN
Inc second degree, an Otfense not pun
isbsble with death, and therefore the
PENDANT was eligible 70 bail; but, IN
fortunately, there were few eases OF law
which could be regarded as absolutely
settied-so long as there was lawyer
-, the other side. He reviewed the
history Of the Schnelle case as Illus
tratlng this, and said he had become
convinced that the settled policy was
that when there had been an acqulttai
ON one count or three, there would De
bar 10 further prosecution, ana II
upon n trial a lesser degree was Iounu'
there was an acQuittal OF higher
grade. A conviction OF voluntary man
Slaughter in other words, was
a verdict Of not guilty as TO
,,prder i'm the first aud second degrees.
That proposition was not affected De-
rause there was but a single indictment.
In a case in which there might De con
viction for any one of 1--WE seversi OF
lenses. a verdict as 10 one was 'ei N.Y.
OF not guilty as 20 the others' I"s
Colonel elaborated upon TINS laea' anu
Quoted from several authorities 10 sup
port his opinion.
Proceeding, the Colonel insisted that
the standing OF the case to-day was Ina'
the defendant was before the court on
AN indictment for murder in the seeOho
degree. ne having been ecQultteo ol
u,Drdar In rhp first degree.