The times. [volume] (Richmond, Va.) 1890-1903, 1895-10-02
THE TIMES-RICHMOND VA, WEDNESDAY,. OCTOBER 9 1898
A WRIT OF ERROR REFUSED.
CONTINUED from First PageD

for the trial Of the accused The record
In this case does not show That panel OF
sixteen persons free from exception were
selected, but only shows tnat OF
the venire summoned Tor the ulai
OF your petitioner. sixteen were
elected, from which twelve Jurors Were
selecicd to try your petitioner. IL may
be argued that under the provisions OF
section Sis6 your petitioner failed 10 make
proper exception before the jury was
sworn; but yOIr petitioner is advised that
the record must SHOW aiiirmatiNeiy, not
mat a panel Of sixteen were elected. put
That panel of sixteen men free from eN-
cepion were selected. This j. not an IRE
Suiarlty which must be taken advantage
~ under the provisions Of section 5loe' but
was a substantive act Of the court
Whlch the provisions or seclOn AVS Icguli-
ca the trial court to perform.the perform
ance OF which should appear upon Inc
record. II IS not to Doe presumed that the
trlal court selected sixteen Jurors free
from exception. IL must afirmatNely APP
pear that II did select q panel OF sixteen
men Tree from exception. In simmons rs.
commonwealth. seth Va. Reports, page
10, the doctrine Is laid down that, that
winch is essential In a felony case must
appear by the record. 1t can never ne
supplied by intendent" Your Honor -
asein referred TO the eases Of Hall vs
Nommonw oalth, S9th Va. Reports: spur
econ vs. Commonwealth. toth Va. He
poIts Myers vs.. Commonwealth. 2vth
vol. :. Ern Reporter
Asain-thls is not only statutory right
put II Is an express constitutional right.
For the tenth section Of the Virginia Bill
or Elshts sets forth that IN all capital
or criminal prosecutions a man hath "A
rlght TO demand the cause and nature
OF MS accusation, and TO
speedy trial by an impartial jury." &c.
The Bill Of Rights ends with the state
ment that the right 10 a trial by an i'm
partial jury along with other rights.
shall not be violated on any pretCuce
whatever" Can n Doe claimed that this
right has not been violated. when IL APP
pears by this record companies OF soldiers
had 70 guard me during the trial, aud
even after my conviction Suppose 10 be
true that was tried by a jury free from
| favor and from prejudice. yet IL will not
be seriously cOntcnded that the jury were
iicc from fear. IL Is true That I, from
my ignorance and inaDA.ty 10 protect my
self failed TO have set forth I'm this record
as clearly as q lawyer would have done.
the fact that the jury were influenced
by the public excitement. but il is equally
| true that there b. sufficient in the record
| 10 satisfy your HOnors judgments that
the jury were so Influenced and intimi-
dated Tor simple common sense Will tell
| any man that IL would have 20 Doe a most
| care Jury for In not 10 be- affected by such
a state of affairs; that a sheriff. a Com
| lnOnWcalth's attorney. and the trial judge
! had to ask that troops be sent 10 guard
me while being tried. and for the COM
/ inandcr Of the troops so sent 10 ask for
more troops / submit that your H0nors
| must be satisfied that / did not have
/ my constitutional right TO an Impartial
| jury: that my trial was "A desecration Of
| justice. l submit that your llonors Will
| not announce that "a man can have fair
| trial by an impartial jury, jury unai-
/ iccted by favor prejudice or fear, when
II rs necessary 10 surround the court
! house with the military I'm order 20 con-
J troll the outside public II is not my case
alone for which your HOnOrs viii am
nounce the law. Your HOn0rs will be ad-
Judging as 20 what course trial judges
| should pursue in similar cases. You
would no h4lliup than such "a agrtliffof a.
public excitement and prejudice would not
be sufficient reason for change OF
venue II such "A condition Of the public
NINA ana temper IS good cause TOT "A
change of venue. that your petitioner in
sists that the trial Judge did not 30 his
duty uider section iu5d OF the Code, which
says judge of a county court may OF
MS own accord FOR good cause order
change OF venue. Surely the giving OF
such power creates also responsibility
Surely under that statute there can be
time when il would be the duty of
judge 10 order such "A change. lie would
rot have been given such power IS the !
Legislature had not thought that under |
some circumstances il would be only just !
and hence his duty. 70 order such |
change. The failure Of a trial judge TO |
perform his duty 10 a prisoner H. mat |
ter subject 10 review IN the appellate /
court. Was II not the duty Of the judge /
who tried your petitioner 10 have ordered !
a change Of Venue. instead of calling Tor |
troops. or instead Of trying case In the |
midst of such popular feeling against
your petitioner. that after your petitioner |
had been convicted IL was necessary 10 !,
place him under military guard 20 re-
move him from the county. Your peu-
TONER insists that this failure of duty |
should be reviewed by your Honors
Second. The second assignment of error
is that the record does not show that the
jury which tried your petitioner was Kept
together. apart from all other persons. ana
when not i'm the presence OF the Court
was committed 20 the custody OF the
sheriff. with instructions from the Court
not 10 speak 10 tnem himself or suner
any other person 10 speak 20 them touch
ing the trial of your petitioner; ana your
petitioner alleges as matter or iact
that said jury was not kept together
apart from all other persons, ana when
MOI i'm the presence of the Court they /
were not placed I'm the hands Of the sher-
iff. with instructions 10 him not 70 SPEAK
to them himself or suffer any other per
son 10 speak - them touching your ptil-
toners trial. The record shows that ar
Ter the jury was selected 70 Try your
petitioner il was adjourned until to-
on through all the time Of his trial until /
SATURDAY. the 18th day Of July. lsi3 when.
after hearing the evidence, they were
sent TO their room TO consult OF tntr'
verdict. and after some time returned into
court and rendered their verdict, and
so on. So IL appears afiirmauveiy by inc
record that said jury after being selected
and sworn were adjourned without haF-
ing been committed TO the custody OF
the sheriff. as the law requires; ana after
hearing the evidence in your petitioners
case. were sent 10 their room 10 consult
Of their verdict. without being I'm the
custody OF the sheriff or any sworn oiilcer
of the court as the law requires. and
after some time We're not brought into
court but returned" into court. When the
Jury retire 10 deliberate on their verdict.
the law requires that they shall be put
I'm the care Of a sworn officer. This pro-
vision Of law has been construed and cN-
with the utmost siricincSs i'm
many cases decided by the Court or Ap-
pcals OF this Commonwealth. and 10y all
text writer's on criminal nroce-
dure I'm capital cases il is required that !
the fact must apucar on the record that |
the Jury. when II retires from the pres
cncc of the Court must De IN the Gus
tody Of a sworn officer. II may be argued
that the fact that 10 motion for a new (
trial and no motion for Srrest OF 1udS-
ment having hcc/ made by your pc
fitiOncr he Is now deprived Of the right I
10 ask an appellate court 10 correct er-
rors which he might have asked the trial
court to cOrrC ct. The doctrine, both In !
England and america. has long since been
aid down that n party charged with /
crime may obtain a writ OF error from
Tho aupellatc court for errors which an
pear unon the face of the record. which
he might have had corrected either by de-
murrer or motion.
See Mills case Of Leigh, 1Jl; Phillips
,asa 10 Graf $40: Wormlcy's case 6
B, b1S. Vol. T.: Surgeon vs.. common
wealth. seth Va. Reports, simmons vs..
Commonwealth. S9th Va. Reports; Han
rs Commonwealth. Snth Va. Reports;
Myers VS.. Commonwealth, 10Th 5. E'rn
Reporter. ~