The times. [volume] (Richmond, Va.) 1890-1903, 1895-11-28

county.
And row I stand here not 70 represent
single vindication or unworthy feeling.
irncnburg must not be dfhN- from the
| straight path. The criticisms OF ohtsld-
| crg must not he visited on these unhappy
| prisoners. Nothing must be asked, MOTH
! inr ia asked but iusticc-impartial even
/ handed Justice. We ask that the law or
| Virginia may be carried OUT az we know
IL VIII be- that these questions ps ueci9e,i
according TO their very right. ana mat
Justice be done. though the heavens IAN.
! CAPTAIN WISES ABLE ARGUMENT.
Captain George II Wise then addressed
| the court on behalf OF the DisontIS,
/ and with 81 convincing argument, Nhlth
| lasted an hour and a hall. closlhs, '.e
case. May ~ please your honVrs, bt
said. tho gentlemen on the o'ncI So
! have complained that we nave neeli Oh.
the outside Of the record or this court
from, berinnin0 to end depending, IN
! our argument. chiefly upon ietl'Is '-h9
orders. and yet the speech 1uat uen.,elSSn
/ by the learned counsel ~ pasen .i'llriF
rnop outside matters More than one
! half OF the time occupied py couisSi
| on the other side has been consumer ~
pointinC ont what the opinion OF your
fTorore ei,o,fld he II the record contained
what n really does not coht"ih' n,t
| charge us with going ontsut -. si.
records. while they coninuaiN ,0l. ~. 49,,
! Judgment on prcsumplons ana Sti"tisle
ms to death with nunc nro luhc ot,.'i7s
] shall ask nothing from Inc n.nu9 ol
this court which DO no. lo ne,iJon ~
m" farfs mon record ! shall depend
uuon no aGidavits. / shall stand upon
what Is here before MS ccruled as ine
action Of the County Court OF I.ahehpuis
upon the trial of the prisoners.
After briefly rocitng the facts c9hnle,l
od with the murder or Mi". H.
which brought on this trial, captain "i'e
..rhc nrst ASSIGNMENT Of error may be
found on page of the petition. II Siai's
that while tho prisoners were 3oiuu D.,, ~,
Ouf havlnr elected TO be so il'eu' OF
without having been severed from lne
other prisoners on motioh OF lh' .'to.
neg for the Commonwealth Anr alllNle
REQUIRES in section 1927 Of tho too'
where several persons are lolNNf
charged and held 10 bc tried Tor ttlohy,
the clerk hv whom a vcnirc iacias iS
| REQUIRED 10 be issued. shall issue a writ
for q single vcnire for the ulai OF an
Of them" The Attorney -1Cheial yestcl-
dav seemed 10 understand tnat our cplr-
piaint is that the record does not show
the severance. either upon 2 motion OF
ITO Commonwealth or Of the prisoner
Tie Aforementioned did not UNDERSTAND
the point we made. or. n ne did, ne did
not answer H. The record does not show
that there was severance. but the At
oruev-General says " II does not show
"a severance on motion OF the prisoner
tho presumption IS that II must nave
been made upon the motion OF me Com
monweaith don't understaha ma "a
logic The record rs silent. ana vet the
Attorney General claims that the pre-
sumption is the motion has been made ny
the Commonwealth
THE FAULTY RECORD.
But that is not the point Section
Indictment the clerk shall issue joint
venire facias for all the prisoners. Dld
| he do a.? That IS command contained
i'm the statute Of Virginia. Wherever
ioint Indictment IS issued the command
of the statute IS that q joint Nenire hs
issued for the trial Was that done.
Does the record show that IL was done'
The record not only fails 10 show IT, but
10 shows that II was not done. In otheT
words that statute was diregarded ana
disobeyed by the County Court or Luhen-
burg. The record shows that the venire
issued for the trial. Of Pokey Barnes did
not include Mary Barnes and Mary
Alternately, who were jointly indlcted
with her Mary Alternately was tried
frst. as your Honors will see by the
records. and her jury was comDosed or
persons summoned for the tr'ai OF otner
parties. six summoned for the trlal OF
party named Hurt and six for the trlai
Of a party named Wilson
Section 4O2S reads as follows: Persons
indicted for felony. who elect 70 be tried
Jointly. shall be allowed to strike from
the panel not more than four. etc. THIS
seems 10 say that the selection snail
be left with the accused. section @H-N
provides that If a person indicted jointly
with others for felony, elect 10 be tried
separately, the venire summoned for their
trial may be used for him who Is frat
tried.
facas for the trial of the others. Jointly
or separately as they may elect The
statute distinctly says as the prisoners
may elect. and not as the CommonWealth
may elect. II this statute had been
obeyed. and II that venre for the trial
of Pokoy Barnes had been summoned for
an these parties. Mary Abernathy under
the terms Of that statute. ought 10 nave
been tried by a Jury selected from that
panel If the record shows that this
statute has been disobsyed. very impor-
nd gf na hIDn
ignored Thousands of new trials have
been granted I'm Virginia on grounds OF
less Importance But the Attorney-Gon-
eral tells MS that this error mas been
remedied bv section 1856 of the Code
"That section provides. No irrcguiarity
i'm any writ of venire facias. or in the
drawing. summOnlng. returning or i'm
paneliing OF jurors. shall ec sufficient TO
set aside a verdict unless the party
making the objection was injured by the
rreguarty. or unless the objection was
made before the swearing OF the jury
We don't say that any Irregularities have
been committed i'm the awarding Of this
vonire facias. We complain that there
was violation of commands OF The
tried by the jury that should have tried
her. and that the jury intended for her
had tried Pokey Barnes This error does
not appear by afhdavits. but upon the
face Of the records and the nunc pro
tune orders Of counsel on the other side
10 not reach it, and do not propose 10
reach It.
SELECTION OF THE JURY.
"The second error assigned is i'm regard
to the selection of the jury which tried
the accused Section 1923 of the Code pro-
Vices that IN every case Of felony
there shall be selected from the persons
summoned as aforesaid a panel of sixteen
persons, free from exception, from which
panel the accused may strike four, and
the remaining twelve shall constitute tee
Jury for the trial of the accused. The
record I'M this case does not show that
panel Of sixteen persons, free from ex-
ception. were selected. but only shows
that OF the venire summoned for the
trial OF the accused, Pokey Barnes, six
teen were elected. from which twelve
Jurors were selected TO try the accused.
Section 40lS OF the Code provides what
persons the venire shall contain-namely,
persons qualified in other respects 10 serve
as Jurors and section 1923 provides how
the panel is 10 be constituted. The
statute distinctly says that the jurors
must be free from exception or in other
respects qualified. and If the Venire falls
TO shows that. u IS erroneous. | therefore
hold that the record must show that the
persons selected from the panel for the
trial of the prisoners were as the law re-
Quires-free from exception. You cannot
presume that they were free from ex-
ception There Is nothing more important
in a criminal trial than obedience TO the
commands of the statute ana nothing Is
more important 70 the accused than that
the Jurors shall be free from exception.
ard the record ought 10 show that. In
~ Virginia Reports IL is distinctly stated
that what is essential In felony cases
must appear upon the record. IL can
never be supplied by intendmcnt, and the