Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1895-12-13
TO HAVE NEW TRIALS
CONTINUED FROM FIRST PACED

sixteen persons were seiccteu' pu' '"''
10 show that they were free from eN-
ception. Section 1856 OF the eooe a.
amended by an act approved February
y. 1894 (Acts OF Assembly lsS- w. o""p'e'
a. page 4sD, provides that
..No ,rreguiarity in any writ oil venire
faciss or in drawing. eummoning, re-
turning. or empanelling OF Jurors shan
no sufficient TO set aside verdict. unless
tbe marty making the objection was In
tured by the irregularity. or unless the
objection was made before the swearing
Of the jury"
No objection was made In the trial
court at any time TO this irregularity,
nor does II appear that the accused was
Injured by It, This assignment OF error
cannot he sustained.
THE accused was indicted Jointly with
two other persons. but tried separately.
The record does not show upon whose mo-
ton she was tried, and this Is assigned as
error Each and every person indicted
Jointly for felony may elect as matter
OF right to be tried separately under
section 4ces of the Code. and the attorney
for the Commonwealth has the right TO
try them separately, subject TO the con-
troll OF the court. but persons jointly in
dicted cannot be tried Jointly without
the concurrent election OF themselves Sn
Commonwealth or the court on the
other. But II IL were true that the ac-
cused had the right to be tried separately
or Jointly at her election. there Is nothing
in the record 10 show that she made
her election TO be tried Jointly. and the
right or she had such right was denied
her. Such fact not appearing In the re-
cord by bill OF exceptions. or in any other
manner. cannot be presumed TO have
trf. al 49,
G27: Lewis and Dennys case. % Graft. 93s.
AS TO CHANGE OF VENUE.
The accused insists that the trial court
erred in not removing her case TO another
county for trial. and that its instructions
10 the jury were erroneous. There is
nothing In the record to show that she
was entitled to a change of venue or that
a motion was made for that purpose;
neither does the record show that the
Court gave any instructions To the jury.
This court considers and can only con-
slider case brought here by "a writ of
error or appeal, upon the record of the
case as made In the court below. IL the
parties have failed there to have the
record show the errors OF which they
complain here. no relief can be had in
this court, however erroneous the action
of the trial court may have been.
COULD HAVE HAD COUNSEL.
1t is also assigned as error by the
accused that she was tried and con-
victed without the assistance of counsel
In making her defence. The record does
not show whether she had counsel or
not; but If It showed that she did not
nave counsel, unless IL appeared that she
was denied that right. II would not be
ground for reversing the judgment. Every
person convicted of crime has a consti-
tutional right to have counsel 10 aid him
in making his defence. but no one Is
compelled TO have counsel. III "A person
accused OF crime is able to employ coun-
sci. but declines TO do 50, and goes 10
trial without counsel. and is convicted,
that is no ground for reversing the
judgment.
II a prisoner is unable 10 employ com
sci the court may appoint some one 10
defend him. and IL Is duty which coun>
sci owes 10 his profession to the court
engaged in the trial. to the administra-
ton OF justice. and to humanity not 10
withhold his aid nor spare his best ef-
forts in the defence of one who has the
double misfortune TO be stricken with
poverty and accused Of crime No one
is at liberty to decline such an appoint
ment. and few. II is to be hoped would
be disposed to do So" tCooley's Con'st.,
Lin. f0o) But we cannot presume That
the trial court denied the prisoner her
constitutional right to have counsel. or
failed. II she were unable TO employ
counsel to assign some one 10 aid her In
her defence.
SUFFICIENT TO VITIATE VERDICT.
1t is also assigned as error that the
jury who tried the accused were not.
when the court adjourned from day TO
ALL. ...,ft taI a
custody of the Sheriff. with instructions
from the Court not to speak TO them
himself nor TO suffer any other person TO
speak TO them touching the trial.
In prosecution for felony in this
State, where the punishment may be
death or confinement In the penitentiary
for more than ten years, the jury must
, be kept in the custody OF the Sheriff Oh
other proper officer, when not In the
presence OF the court. and their separa-
ton out Of his custody and control Is
prima-facie sufficient 10 vitiate the YER
dict. phillips case. - Graft. 49,, $40. and
cases there cited)
The only question. therefore. TO be con
sidered I'm this case. is whether the fact
upon which the assignment OF error j
based appear by the record. TO snow
these facts the accused relies upon I'M
orders of the Court in the cause, among
which are the following:
at county court continued and hell
in and for the said county at the court
house thereof on Tuesday. the 18th da.
of July. 1895.
"Pokey Barnes who stands indicted
for murder, was again led to the bar
In custody Of the Sheriff of this court
and the Jury, sworn on Tuesday TO tr
this case appeared in court according 1
their adjournment on yesterday, and
having partly heard the evidence, wer
again adjourned TIL tomorrow morning
at . o'clock, and the prisoners remande
to Jail.
at county court continued and hel
In and for said county, at the court
house thereof, on Friday. the 18th da
Of July. 1895,
"Pokey Barnes who stands indicted 10
murder, was again led to the bar.
custody Of the Sheriff OF this court an
the Jury sworn on Tuesday last to tr
this case appeared in court in accord
ance with their adjournment on yestei
day. and. after partly hearing the ev
dence were again adjourned till to-mol
row morning at o'clock. And the pri'
oner Is remanded to Jail.
NEVER DECIDED BEFORE.
The question raised by this assignmer
Of error is one which, so far as we ca
ascertain. has never been decided b
this court. In Benefits case, Leigh
rs. the record showed that on each da
the Jurors were committed to the custod
OF the Sheriff, who was directed to a.
tend and keep them together In one {