The times. [volume] (Richmond, Va.) 1890-1903, 1895-12-13
ALL THREE GETA new TRIAL
CONTINUED From First Pagc,-

NtH'N AtaN Sl4t WIS tttNN t-'Na
without the assistance Of counsel IN max
ing her defence.
lhe record does not show whetncr snc
mad counsel o. not, but ff X sno"td t'at
she did not have counsel unless IL APP
peared that she was denied that fisht. II
would not be ground tor reversing the
Judgment. Every person Convicted oi
crime has a constitutional flent 10 nave
counsel 10 aid him in making hts defence,
but no one is compelled 10 have counsel
II a person accused Of crime Is able to en-
ploy counsel, but declines 10 90 so, ana
goes 20 trial without Counsel. ana Is con-
yicted, that Is no ground TOT reversing
the judgment
4 prisoner IS unable to employ coun-
sci the court may appoint some one 10
defend him, and Il Is duty when coun-
Sc. owes 10 his profession, TO the court
engaged in the trial. 10 the admins ira
ton Of Justice. and 10 humanity not 20
withhold his aid nor spare his best en9its
III the defence OF one VINO mas ny
double misfortune TO be stricken WIN
poverty and accused OF crime No one Is
al liberty to decline such an appointment
and few. II Is to be hoped Wouiu Dc nIs-
posed 10 do So Cooley Nohst. bi ~,
lof But We cannot presume tnat the
tral court denied the prisoner her con-
sttutlonal right 20 hear counsel OF lai'',,,
IL She were unable to employ counsel 10
assign some one TO aid her III her ue-
fence. a.. a..
IL Is also assigned as error that me
Jury who tried the accused were not
when the court adjourned from Gay ~
day during the trial. commlttel 10 w
custody Of the sheriff WIN ~. 49,, rim
from tie court not TO speak 10 them nm
self not TO suffer any otner person /"
speak to them touching TIE triai', ,h,g
IN a prosecution Tor iclcny III t'ila
state where the punls ~ nr.o-,.ontfarv
death or confinement IN the pehltei '.a
for more than ten years, inc juls II, irust
bc kept I'm the custody or lhe snell ~. o'
other proper officer when not IN the pres
ence Of the court ana tner I, ., ~i,o,
ont Of his custody and control ~ pliiud
facie evidence sufficient 10 vitiate tne yer,
Diet. Phillips case. 80 Graft 49, oi0 ana
cases there cited.
ORDERS or TIE COURT.
,rae onlv question. therefore 20 be con-
sidcrod I'M This case is whether the facts
upOn which the assignment Of error -
based appear by the record.
70 show these facts The accused IeileS
upou tic orders OF the court In the cause
amou< which are the following,
al County Court continued ana nero
tn and for the said county. m me coul'
house thereof. on tuesday TIE le'h uaS oi
"Pokey Barnes. who stands indicted for
murder was again ied % Inc par ID 80
tody OF the sheriff o. this court dliu 'lc
Jury sworn o. Tuesday 10 Try thls case
appeared In court according 10 theI al-
I1urnment or yesterday. d.d having par
Isl heard the evidence, were again dd-
lOurn-i tii tomorrow morning ar =
o'clock, and the prisoners reinaAueu 10
AT d County Court continued and held
IN and Tor Said county. at the conrt-h9u7e
thereof, on Friday, TIE 18Th day o. july
~Pokev Barnes. who stands indicted for
murder, was again led 10 the bar in Gus
tody or the eher.n Of this court, ana the
jury sworn on TUESDAY iast 10 try tn.lts
case appeared Ia court IN accordance WIN
their adjournment on yesterday, and al
ter Dartlv hearing tho evidence were
again adjourned I'LL tomorrow morning
az o'clock, ana tnc prisoner is remahded
The question raised by this assignment
Of error is one which, so FAR as we can
ascertain. has never been decided ~ inns
court In Benefits case. Leigh, 40, the
record showed that on each day the Ju-
rors were committed 20 the custody OF
Tie sheriff. VINO was directed 10 attenG
and keep them together IN one OF me
jury rooms without communication VITA
any other person. aHd to cause thelu 10
appear in court the next day' put IL uiu
not show that the slerln was sworn 20
perform that duty. The majority OF the
court held IN that ease that II was eA-
officiO the duty OF the sheriu 10 Keep tIe
jury. ana that Il was not ln4lspensaniy
necessary that he should Toe sworn,
though II was generally done out OF auuh-
dant caution.
The form OF a record of the proceedings
IN court III n INl0iE tttrf a. AflAilii'At go"
is given BY Gritty in his work on crlini-
nal law at PAGE 30. and IL is also gwen
in the appendix to volume : OF ChlitN
Blackstone Some of the proceedings
which are noticed Ina that form ere no
longer required. whilst others not con-
tanned therein are now made essential
II will be observed In the form given
by Chitty that there rs no notice taheh
Of the jury during the progress or tne
frial. The reason, no doubt. was that
after the jury were sworn the court pro
ceeded with the trial without adjournment
until d. was ended.
I'm the case OF King vs. Stone. reported
IN Tenn. Rep. aZi-5l. IL - stated thl.
The court having set OF the nrst day ol
the trial from o'clock IN the morning
tin le o'clock at night without any lnler-
rupti0n or refreshmeut. and me Attorney
General stating that his evidence Wouin
occInv four hours more and some Of Inc
Jury being very much exhausted ana IN
canabie. as they declared. OF keeping mp
thpir attention much iopsef TIE court
adjourned until q o'clock The next morn
irg Lord Kenyon. observing that ncces-
sitv Justified what it compelled, ana that
though Al was left 10 modern times 10
bring forward cases 81 such eNtFaoFll-
nary icugtn. set no rule could compel the
rourf TO continue longer sitting than their
natural uowers would enable them 10 90
ne business Of &c." tie allowed the jury
10 retire and entered the following order.
"Forasmuch ar i appears 10 the court
been already occupied by the trial or the
ss1a Joined upOn the indictment. and the
rurther time which wiii be necessarily oc-
cupied by the same, that justice cannot
be done II this court proceed without IN
Permission upon the sand trial, it Is or
Gcred that de jury impaneiled and s"A 2
10 try the said issue have leave 10 win
.raw from the bar OF this court being
well and truly kept by six balius duly
sworn not 20 permit any person 10 speah
10 them touching any matter relative 70
the trial of this issue. ana that the same
iurv shall again come 70 the bar OF this
court on tomorrow at O'Clock IN the
forenoon"
CONDUCT OF THE SHERIFF.
Since that time this seems TO have been
the practice in England, and 10 has been
the practice ia this State from an earn
uay.
Mr. Robinson. in his Old Practice. vel
3. page Zi6. published IN 1888. SAYS
when the jury FL case OF felony can
not fully hear the evidence ana the arSu-
ments or counsel on the day that 'hey are
empanelled. the practice IN virginia IS 20
commit them TO the custody OF the sheFlN
or other officer who is directed TO keep
them together without communication
with any other person, and 10 cause them
TO appear before the court al the hour 10
which IL adiOurns. At the time Of so COM
hitting the jury to the custody Of the
officer. II is usual TO administer an oath
10 the officer 10 the following effect. You
shall well and truly. TO the best or your
ability. keep this jury. and neither speak
10 them yourself nor suffer any other per
son 10 speak 10 them touching any mat
ter relative 10 TINS trial until they return
into court
Cases. SO. decided IN ls26. in Mandum'a
case. Rand. 70l. as is stated IN Ben
notts case. 5 Leigh, 40 decided IN 1915.