The times. [volume] (Richmond, Va.) 1890-1903, 1895-11-27

! Judge Mann thereupon presented TO the
Court the following:
II being understood that the said nunc
pro tune orders. II they had been entered
would have so amended the record az
TO show
l. That sixteen Jurors free from ex-
ception. were selected in each case.
?. That at every adjournment Of the
court the jury then trying the case ~
bar was put in the custody OF the sherlh'
who was duly sworn as required Dy ia"'
and that the said Jury were each norm
ing returned into court IN the custody o
the sheriff, according 20 the order OF a'-
journir ent.
z. THAT whenever the said jurors went
TO their room 20 consider OF TIER YER
diet they were put I'm the custody OF
the sheriff who carried them 10 their
room, and returned them In his CUSTODY
into court
4. That before delivering their verdict
.hc said Jurors were duly polled as re-
qured by law.
:. That these amendments to be made
TO the record are based on the personal
! knowledge of the judge and the RECORDS
OF the courts as they now stand.
s That all Of these orders were made
during the trial. and the clerk then d.
rected 10 enter said orders on the order
books. ana that by mistake he failed TO
make said entries.
JUDGE FLOURNCY OPENS.
The court fllen decided 10 go on with
The case and Judge FlournOy then OPEN
ed the argument on behalf Of counsel for
the prisoners, and spoke in substance as
follows;
May II please your Honors, ! am not
prepared 10 argue now the question as 10
the power Of the County Court OF Lunen-
of order
There are only two cases of which have
any knowledge In which this doctrine IS
involved. and where II is stated that what
IS asked for Ia this case cannot be
done
We are before this court upon n made
up record for the first time In the his
tory Of Virginia. where people condemned
TO death appear in this court without
having been represented by counsel in
the trial court. | have heard but of one
other. similar case. but / do not know
whether the prisoner In that instance
did not desire counsel
! suppose It is admissible that if the
County Court had the power TO amend
the record and make it fit to suit
case OF hanging. we would ask 20 amend
the record in many things. which posi-
bly, would put us In better position be-
fore this court now. We are here with
the Judge of the trial court. under those
circumstances when these people before
him were helpless, ignorant. and poor,
used due care 10 comply with the man
dates of the law in proceedings of con-
dcnnation. 1t would be stretching the
law a long way. should the judge Of the
trial court be allowed now TO make up a
different record II would be a departure
from the commonest rule of justice to say
that any man should be permitted 10 add
one syllable 10 the record, which he made
UP himself at the time TO make q case
to permit these indefensible people TO
go TO their death.
The position Of the prisoners as stated
by their counsel In the application for a
writ OF error and supersedeas was set
out that these people were ignorant. poor
and without counsel. and that no reason
able effort was made by the Judge OF the
trial court 10 procure counsel for these
people. We are aware that there is no
special statute existing in Virginia COM
pelling a court 10 provide counsel for
prisoners accused of a felony. although
there is statute i'm existence providing
that paupers shall have counsel without
fee. Any case before any court must
stand upon its own merits. and If IL is
shown TO the court of last resort that
these people did not receive fair and
impartial trial, this court will decide that
the prisoners are entitled TO be tried
again under fair and impartial condi-
tons
We contend I'm the petition that the re-
cord shows that of these prisoners three
were Jointly indicted. Mary Alternately,
Mary Barnes, and Pokey Barnes. and it
also appears that they were tried sep
arately, but il does not appear that this
was done on their own motion. or on the
motion Of the Commonwealth. The latter
certainly had a right to DO II. but the
record does not show such "a step II also
does not appear on the record exactly
how these Juries were selected. The Code
of Virginia provides in section 4Cg1.
"Where several persons are jointly chars-
ed and held to be tried for felony. the
clerk, by whom venire facias is requir-
ed to be issued. shall issue a writ for "A
single venire for the trial of all OF them
The Code also provides section 1929:
"If person indicted Jointly with others
for a felony. elect to be tried separately.
the venire summoned for their trial may
be used for him who is first tried, and
the court shall award a venire for the
trial of the others. jointly or separately,
as they may elect
EMPANELING THE JURY.
1t is contended, and will be contended.
by counsel on the other side with great
force. that the manner of summoning.
empaneling and swearing in OF the jury
cannot be considered now under section
1886, which prescribes the following: NO
irrogularity in any writ of scire facits.
or in the drawing, summoning, returning,
or empaneling of jurors shall be sufli-
cient 10 set aside a verdict, unless the
party making the objections was injured
by the irregularity or unless the objec-
tons was made before the swearing Of
the jury
Under this section it is claimed that it
would have been the duty of the prison
ers TO take advantage of this privilege
at the time of the trial. But when il
appears on record itself that the
mandate of the law for the trial OF these
people had not been complied with. that
section of the Code does not prevent us
from asking the protection Of this court
for the prisoners. which should have been
received from the court below. | contend
this court ought to consider the fact that
these people were tried for a grave and
fearful offence without counsel. and as
the record shows. not in the manner pre-
scribed by law. 10 be conducted I'm the
trial court. This court ought also 10 con-
slider the fact that unless the Common
wealth decided TO try the prisoners sepa-
rately the section above referred to should
have been complied with All these facts
so to show that there was undue haste.
and careless. If not reckless negligence.
in The proceeding of the court that tried
these people
my associate TO the fact that there is no
statement in the record IN tho man.