The times. [volume] (Richmond, Va.) 1890-1903, 1895-09-13

The - which :ried nti- ''t.-,h -
OF the code provid. that IN every case
Of a felony Their, shall be selected. rom
the persons summoned As aiJr -1tib' Il
l.aicl OF sixteen persons Tree rom - -
tiCn. from Which panel the &C l'ei 10y
strike four and the remaining Twelve
shall constitute the jury for tho tridl OF
the accused" The record IN TINS as
does not show that panel OF sixteen ~
sons free from exception were sepct,p'
bIt only shows that o. the NehND S.ii .
moned for the trial OF your pel.lvnSi,
sixteen were elected. from when lMtEe
jurors were selected TO try your petition
or. II may be argued tnat uhueI W. ~
visions Of Section 5lb, your pcuuyntr
failed 10 make proper exception pslol-
the jury was sworn: but your petitioner
is advised that the record must snow,
af'irmatiVely. not that pdnei OF slAtech
men were elected. but that a pahei Ol ~
teen men free from exception were seIe..
ct. ThiY is not an regularity, wh-ch must
be taken advantage OF under the pro
visions OF Section 3J6 but IL was SUI
stantive act OF the court, Wh.cn the piv,
visions OF Section 4G3 required the trial
court 30 perform, the performance OF
which should appear upon the lccgiu. !.
IS not 20 be- presumed that the tilal court
selected sixteen jurors Tree from ,Nv't
ton, II must aiiirmaiveiy appear eia ~ ~
did select panel Of sixteen men re
from exception. In Simmons vs.. Doi1-
monwealth. S9th Va. Reports, page i'',
the doctrine Is laid down that . INA
which is essential in felony case mus ~
appear by the record, II can never Ds
supplied by intenlment' Your hohoi
Is again referred 20 the cases OF nan W
Commonwealth. s0th Va. Reports, Spnet
gcOn Vs. Commonwealth, Sotn y -. -,
ports. Myers vs. Commonwealth, -lth Oh
). Ern Reporter.
III THIRD FInor.
The third assignment OF error ls til ma.
the record does not show tAal lN' -
which tried vour uClfi0ner W rs h'Il
together. apart from all olher pe, 80,
and when not I'm the preSfH,' II. 30
Court was committed % the c'atvI.
the sheriff with instructions from lIc
court not 10 speak 20 them himself JI
suffer any ether person 70 peak U" '-l.I
10, ching the trial Of your ptt4'lcl... 80
your petitioner alleges as 49, .tbo,'
fact that said Jury was not KEPT 1o1 ,-ii..
apart from m other persons, am VIII
not I'm the presence OF the court ''.
were not placed IN the i@lira -i
sheriff. with Instructions 10 nun iD. ~
speak 10 them himself or siiief any o.h'.
rsfson To- sneak 10 them togC nins Your
DctifiOncrfs trl4l The record SHOWS lHHl
after the jury was selected 10 u. your
petitioner. IL was adl lru ui'i' -
morrow morning al hah pa7i
o'clock" That whom. on ahoihcr hel w.
wit. ON Wednesday. the 18th day OF july;
1885 the fury was ali0ur1'i lh' -. pi,'
time until tomorrow Iiolu.l- - 80
o'clC,k." without being comm Ecu ~ .e
officer end So ON through all or On AVS
OF her trial until Saturday the zlln eSf
Of July 1895. when, "licr h,'-ii '7 ,,
evidence they ere scnt 10 ln," l,"
20 consult of their verdict. ana al .'i ,. Ia
time returned into court, anu ga
tn r. vcrfic' " aud 50 on. 80 II appears;
alfiruativclv ~ the record THAT s'ld
tirv. after D ing eclo 'tni ana sworn,
adjourned without having nt'r ,i','. ~,
tod 10 the custody OF the sheriff. rs ll,'
law requires. and aftc' hearing t+ir evil
dence in your petitioners case, We're ,,i.l
o. their room 10 consult 'l l.i-N
without hciu- in the CUSTODY OF NC
sheriff or anv sworn officer of the COURT
me- the law feuulrcs. and after some TIME
war, nor .brougffT into court, but ZEE
turned into court. When the gun reilIe
% Gelinslff.. on ,s9if t'cict lhc IA" l,
quircs that they shall be- pat IN the care
- a s.y@rn officer This provision of law
has been constructed duI tNp'nhi-N ~
the utmost strictness m favor OF par
| charged with ci.Eie in many cases le-
| cidcd bv TIE Court OF App'hs OF lh!0
J Commonwealth and by all standaii t'N,-
writer's on criminal procedure III 'api-
tai cases IL is required that the iact must
apncar Ou the record ina, the jury "H'i
/ 10 rctircs from the presence OF tNr .1'i. -
must he in the custody OF sworn 'i'.
II may be argued that the ract that 10
motion for new trial and no motion ln
/ arrest Of Judgment having retn m n, nl
| y0ur uctitiOlcr. she is now lfptiFcd NI
The right 10 ask an apr ellaie 60 ill 20
correct errors which she m.snl n .,h
/ asked the trial court 20 correct. H'
dotrine both i'm England and America
| has long since been laid down tn9t
I rarity charged with crime may ob'tll
writ Of error from the Appellate c2,Il
| for errors which appear upon the race
| of tho record which he might have htd
| corrected either hy demurrer or notion
! (See Chitty's Criminal Law Cnap.tF
7; Spt rgoon VS.. Commonwealth N'th y q.
L H|IHHI ID d & .
S9th Va. Reports. Han VS.. common
wealth. Soth Va. Reports MYERS VS.. Tom
munwcs lth 10Th $. Ern lici ortefJ
THE FOURTH rrnon.
The fourth assignment of error by your
rctifionfr lis that The court erred ln the
Instructions which 1t gave. 2 COPY or
which appear upon o." record Wu-'h iA
submitted as part Of This Ieution D.l ss-
uociallv IN that wherein the court IN
! etrucf0l the Jury that The burden OF
proving an alibi is upon the prisoner To
the reasonable satsia ZION ~ tne jury.
and that an the evidence Whatever OF
an alibi must Doe considered on the gem
cral case with the rest OF the tc7timcnyt
and II "A reasonable doUht OF the guilt or
the prisoner be ~a.scd Boy the eNii ence as
a whole. the doubt must Oc given in IA
vor of innocence by AN 1cuuittdl or the
prisoner" Bv "A careful inspection Of this
instruction 81 Will appear that IT, was cai.
culated to misleId The jury. II shoaid
have been made 10 appear plainly that
wherever any evidence is part OF mo
proper case Of the prosecution, The bur
den Of proof IS upOn the state that
there can be no presumption from the
failure OF the defendant To produce such
evidence. even when ln MS own hdh.@-
Even If IL be true that where the de-
fence is an alhi the burden OF proof is
ON the defendant 30 should I'm that COM
ncstiou have been stated by the court
that "t0 establish an alih it is not neccs-
sarv that the jury should be fully salts
fled Of its truth
state VS. Henry. IS Ia, 4G; Howard vs.,
State. 20 Ind. leH. state We. JaNnes, IS
y G.. state VS.. watson. ! \. g.. h5-l
II is sufficient II the evidence OF the
alibi raises a reasonable doubt.
lMcAnally W.. site. - Ala, ., johnston
VS. State. n Tex, 3Is
Failure TO prove AN dllh raises no pre-
sumption against the prisoner. and tntt
should have been made 10 appear l1 the
instructions but En- the latter clause or
this instruction. wherein the court say
that all the evidence Whatever 90 nm al,
ibi. must Doe considered ON The genera
case With tho rest az the testimony, a-.t
fl "a reasonable doubt Of the guilt Of tie
prisoner be raised by the evidence as
,yi ole the doub. must boz given in Gas OF
of irrOfence by al acqutttl of the prl.-
Oner" the language is obscure and call
calaffd TO mislead. Tho burden is upon
the Commonwealth 10 prove 10 moral
certainty. ana beyond amy reaSo.aJlc
doubt. cvcrv link ln tho chain OF evidence
necessary 10 the convi' Ton OF the 9r.s-
oner ANA nothing shout be- stated in a."
instructions of tine court which might. Do;
any possibility impress the mimi OF any
iurvman that the hulren urOn the COM
,ncnwcalth is less than that.