Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1892-02-13

CAPT. DONENER'S ARGUMENT.
Capt. Dovener then said that he would
take up the argument just where Mr..
Howard left of.
The State has no feeling in this matter,
except 70 present the law as was laid down
oy the authorities. IL is the duty of the
defendant TO present the authorities per-
Suaslve Of new trial IL the jury finds a
verdict of murder in the second degree and
the evidence does not warrant that verdict,
then an injustice has been cone. a Juror
mas expressed an opinion before going on
the jury, but during his service US juror
he has conducted himself properly, and
renders verdict in accordance with the
evidence then it is the duty Of the defence
TO prove that this very juror has done the
defendant an injustice. l didn't hear Mr.
Sommerville say that the evidence was not
sufficient 70 ind verdict of murder in the
second degree. The defence says that the
Juror, Bell, had been driven from the jury
box. / will prove by authorities that a
juror they allege is unqualified, is good
juror.
The Court must come to the conclusion
that an injustice has been done the defend
ant by reason Of A, b or Q being on the
Jury, before he grant new trial. Mr..
Bell, Mr.. Sommerville says, was driven
from the jury box"
Captain Dovener then cited a number
OF West Virginia authorities cOntirma-
tive Of the fact that il twelve good jur-
orS have tried the defendant he cannot
complain Of other good jurors being
put of the jury. Mr.. Dovenor said that
he wOhld show that no evidence was
presented TO impeach any Of the jurors
In this case; that the defense was aware
OF all the evidence which they brought
up against the jury, before the verdict
was rendered In the case of Juror
Schmidt Mr.. DOvener read the examin-
alton Of His Honor of the juror, show
ing that Schmidt had not formed fixed
opinion.
Il never heard of the fact y Capt. Dove
uer continued. that the supposed miscon-
duct of two jurors can be taken together to
weigh in granting the defendant new
trial. Every juror stands on his own
ground In the case of Robinson, the first
he heard Of the shooting was az Mr.. Zane'S
supper table, and at that time he expressed
no opinion, no hostility against the defend
ant. And vet afterwards Bates testiheS
that few days later he (Robinson) mad
said that Garrison should be hung. But
hOOLnSOA NGnLCS NulS, GLu lAOhAloNu - q
man whose honor cannot be impeacheo.
Capt D0vener then cited authorities con-
tirming the position that the Court will ex-
cuse the recollection OF a juror, as in the
case of Robinson. Under the superstition
that Robinson had expressed an opinion,
vet that can be reconciled with his honor
on the ground that he had forgotten about
it, An expression Of an opinion in case
is not prejudice. An opinion is merely
Judgment on the abstract facts, nota hos
tile feeling against the defendant himself"
Here the Court adjourned over until
two o'clock.
The audience was much larger at the
afternoon session than during the morn
ing, and as the afternoon wore away
the attendance increased until at the
close there was not a vacant chair in
the Court room.
Captain Doverner began by stating
that at the noon recess he was proceed
ing 10 show a case where it was alleged
an injustice bad been done the defend
ant, as COntrasted with a case where
there was no such injustice, and illus
trated the difference with the case OF
State V. Schnelle, where Jurors j. l..
Ballard and J. $. Mitchell were under
scrutiny. The motion was to set aside
the verdict and grant new trial, and II
was granted on account OF evident bias
and prejudice, and not from the mere
fact that there had been an expression
of opinion. The case affords cOmpari-
son OF what the Court considered an In
Justice % the prisoner, as contrasted
with a case where the Court considered
there was no such injustice.
an the Schnell case, Juror Ballard swore
on his roir dire that he had no bias or prelu-
dice. A man may express an opinion and
vet have no bias or prejudice and be COM
netent Juror. 10 does not imply hostility.
A mere expression of guilt does not imply
hostility, for il may be an honest opinion,
based on incomplete evidence, which may
be subsequently, removed by full hearing
of the facts. Your Honor very carefully
guarded that point in the questions pro-
pounded 10 the Jurors. That sort OF an
opinion is the opinion OF an honest man,
ard when such man says ne would not Al
low that opinion TO influence his verdict,
and would try the case according 20 the
evidence. there can be no harmful results
TO the defendant, and the Supreme Court
has so heidi
In confederation Of this, Captain Dow
ener read from the Schnelle case, and
then said that IL Robinson had heard
that Dr. Garrison had shot and killed
good man, and had, on that informa-
ton, knowing the penalty for murder
said he ought to be hanged, 1t dld not
imply hostility. He challenged counsel
on the other side, and even the Court
and the audience, to produce or show
single hostile syllable from Robinson
against DIR. Garrison, except and save
the opinion he had expressed on first
hearing of the crime. 1t was in evil
depce that Robinson did not know eth
or DIR. Baird or the defendant, and
therefore he could not have had bias or
preiudice. The evidence by the wit
ness was:
81 never saw DIR. Garrison until saw
him in the Court room. de also sai9 ne
did not know DR. Baird. Robinson had
read no evidence, but he had heard story.
me iuror Ballard, in the Schnelle case,
had read evidence in the newspapers, TAX,
an at the preliminary examination, as Wen
as the published accounts Of the murder"
He quoted at great length from the
ScbneIle case, where the Juror Ballard
was under inquiry, showing that the
ipror had said he "had read nearly every
thing" published regarding the case,
and that he had based an opinion upon
What he had read. Yet he had stated
mon INQUIRY by the Court that he
thought he could set that opinion aside,
and he was accepted as a juror. This,
Cantaip Dovener thought, made case
AGAINST the Juror ''far superior to any
thing alleged against Robinson-far Su-
naror." Yet Ballard was pronounced a
GOOD iuror. The Captain gave resume
~ The Schuckhardt case, verbally, and
NV reading quotations from the record,
= a, - L. with the language OF