Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1895-09-13


Of error to be awarded TO the SAID
| County Court Of Lunenburg. ana tna' snc
be granted q new trial.
And this she will ever pray.
The record also shows that during the
trial OF your petitioner and the parties
Jointly charged with her, OF said crime
| the trial Judge entered an order that j.
| n. Derbyshire, major commanding, be
| authorized to remove from the county Jail,
| in his discretion. Solomon Marable, your
petitioner. and Pokey Barnes, to the
courthouse building for their safe keep
Ing, etc.
The. Other Two Petitions.
The petitions in the cases OF Pokey
and Mary Barnes-the former now IN
the Richmond jail under sentence OF
death, and the latter serving her ten
years term in the penltentiary-are SINH
lar TO that flied in Mary Barnes's be-
half. The only material difference Is
the following extract which does not ap-
pear In the Mary Alternately paper:
THE fourth assignment OF error by
your petitioner Is that the Court erred
ia the instructions which 1t gave, copy
of which appears UPON the record. which
is submitted as part of this petition; but
especially in that wherein the Court IN
structed the jury that the burden OF
the reasonable satisfaction OF the jury.
and that all the evidence. whatever OF
an abb must be considered on the gene
raj case with the rest OF the testimony:
and " n reasonable doubt OF the guilt
OF the prisoner be raised by the evidence
as a whole, the doubt must be given III
favor Of innocence by an acquittal or the
prisoner BY n careful inspection OF
this instruction 1t will appear that II
was calculated 10 mislead the jury. II
should have been made to appear plainly
| that wherever any evidence Is part or the
proper case OF the prosecution the bur
| den OF proof Is upon the State; that
there can be no presumption from the fail
ure of the defendant TO produce such
| evidence, even when I'm his own hands.
| Even II Il be true that where the de-
| fence is an alibi, the burden OF proof Is
! On the defendant, 1t should, in that con-
.nect,on. have been stated 10y the Court
| that to establish nm abb. II Is not ne
cessnry that the jury should be fully
| satisfied Of its truth State vs. Henry.
18th Iowa. s03: Howard VS.. state. 10Th In
| diana. 100: State VS. Jaynes. 18th North
| Carolina; State VS.. Watson, 9TH South
| Carolina, c. 1t is sufficient II the evil
! !ence OF the albi. raises a reasonable
| doubt. McAnally vs.. State, nth Ala
bama, .; Johnston VS.. State, 2lst Texas,
| 3GS
Failure 10 prove an aibl raises no
| presumption against the prisoner and
that should have been made to appear
| In the instruction: but in the latter
| clause Of this instruction. wherein the
| Court says that all the evidence, what
| ever of an alibi must be considered on
| the general case with the rest OF the tes-
| tImony. and If a reasonable doubt Of the
no ky
| evidence as a whole the doubt must be
given in favor Of innocence by an ac-
| auittal OF the prisoner the language Is
| obscure and calculated 10 mislead. The
burden is upon the Commonwealth TO
proye TO q moral certainty. and beyond
any reasonable doubt every link I'm the
| chain of evidence necessary to the con-
| victlon OF the prisoner. and nothing
| should be stated in the instructions or
| the Court which might, by any possibiii-
| ~. impress the mind OF any juryman that
| the burden upon the Commonwealth Is
| less than that"
Tbe Afidavtts Ruled Cut.
Captain Guigon then presented 10 the
| Court certain papers and orders, which,
while not I'm the record of the court, were
| issued during the trial. after which ne
signified his purpose OF introducing am
| davits made by parties who know aught
| that bears on the case. Mr.. Southall
| objected to the presentation OF these az
fdavits. and the question was argued
| briefly. The Judge decided that the affi-
| davits could be read. but he did not
| promise to consider them. Among the
| napers read were the report made by
Major J. II. Derbyshre 20 the Governor
and a statement from Major Derbyshire
setting forth that he believed that at all
times during the trials the prisoners were
| in great danger Of being lynched
| The Court stopped Captain Guigon, ana
| said that II was useless for lin TO pro-
| coed, as the papers could not be con-
| sidered. At this tuncture Mr.. Neblett
| interposed an objection TO the further
| reading OF the afidavits. whereupOn Cap
tain Wise Jumped 10 his feet. and said
| that he was surprised a Mr.. Neblett OBJ
| iecting TO anything as being Illegal since
| ne had In the trial OF the prisoners,
whose cause was then being argued, In
| troduced military In the grand-jury room.
| Mr. Neblett was about TO reply 10 this
when he was stopped by Judge Coleman.
| who said he had not time for extrane-
Gus arguments. He then decided posi-
| lively that he wouldn't hear the papers,
| and Captain Guigon put them away.
The Argument of Counsel.
The argument was now gone into, and
! Jud-e Flournoy opened. In the outset
| he said he had no word OF criticism FOR
| the people OF Lunenburs. The people at
large OF that county, he said. had no
more to do with the case than those OF
| Amelia, Accomac. OF Nottoway; but some
| of the Lunenburgeans. he continued, were
in such a spirit OF mind and feeling as "a
| make IL necessary for military TO De
| kent around the temple Of justice 10 Keep
| tine mob from entering ard destroying the
| prisoners, despite the law or the land.
| The record showed all Of this 10 be true.
| Judge Flournoy expatlated on the fact
| that the prisoners were taken out OF the
| hands of the court officers and delivered
| over 10 Major Derbyshire, after when
| he said that the case. in one respect, was
| without precedent, as no person was ever
tried for capital offence In Virginia
| and convicted and sentenced to be hanged
| without having had the benefit OF the
| advice of counsel.
| Getting down 10 the meat In the cocoa
| nut. Judge Flournoy said at last the case
| was in very small compass. The court
| of last resort In Virginia had often de-
! cided that the record Of trial for crime
| shall contain statements that everything
| essential has been done. The appel
| late court cannot presume that any
| thing has been done. IL must know IT,
| end car only obtain this information from
the record. The speaker then cited GER
tain authorities bearing out this state
ment. and. with the petition as a basis
4 IL -af1 tha he