Richmond planet. [volume] (Richmond, Va.) 1883-1938, 1895-12-07

| ne nau consulted the counsel for
the defense and they had at that time
agreed to such proposition, but that
| owing TO complication which had aris-
en-, they did not now seem to think
that they were bound by such an
| agreement.
Captain A. B. Guigon said that
Judge Mann had informed him that
the court had suggested that such or
ders as the Judge of the County Court
OF Lunenburg might see fit, be entered
and certified 60 this court, and if the
court was OF the opinion that the pres
| ence OF the prisoners was necessary to
make valid the entering of such an or
der, the case would be passed by and
the prisoners sent to the County Iourt
i for the entering of such an order.
The Judge OF the County Court of
Lunenburg had failed TO take advan-
tage of the suggestions of the court
and he declined Co ask that the Court
proceed with the case.
Judge w. III. Mann sai0 tlat he was
present at the County Court OF Lunen-
burg on Saturday last. The Judge of
that court had insisted that he did not
believe he had any authority TO enter
the nunc-pro- tune order in the alb
sence OF the prisoners He stated
that ne desired to show that the iu-
rors were in the hands of the sheriff
and that the jurors were men free
from exception.
He read the orders they denied en-
: tered
Judge Flournoy arose and opposed
any delay. Counsel were present at
the Saturdays session OF the county
court OF Lunenburg with such orders
as they desired entered he would
, show that the jury had conversation
with the public.
The judges retired and after an abb
sence of about fifteen minutes. they
returned and said that they would
hear argument for the entering of the
nunc- pro-tunc order along with the
case.
Judge Flournoy continued, I only
know OF two cases where a nunc-pro-
pro-tunc order had been entered.
I know OF no case in which person
was condemned to death without
o counsel.
suppose it is admissible to say to
this court that il the ounty Court OF
Lunenburg had a right TO amend this
record on its own memory, we might
ask for the amendment of it in many
;. | particulars. They did not when he
tried these people without counsel
they helpless, ignorant and too poor tC
comply with the mandates of the
| court.
l say it would be indeed terribl.
that he should be- allowed to amend
these records months afterwards s
IL would be indeed terrible shoulC
this court be permitted to add on,
letter or one syllable TO the recorC
ID which he made up himself at a tria
where the prisoners were tried with
out counsel, and permit these unde
Tended people to 60 TO death.
shall detain the court a very littl
while IN what have to say Abe cas-
es of these people are stated in al
III application for wriJs or error and sup
ersedeas. IL is fact they were ignor
rant, helpless and poor. 1t is ais
true that no extra effort was made I
secure counsel. / am aware ths
there is no statute which command
assignment of counsel to prisoners bu
- there is provision which requires tn
assignment of counsel without cost t
u the pauper. We contend that thes
be prisoners are entitled to fair snd i'm
of partial trial.
WHAT THE RECORD DOES NOT SHOW
hn This record shows that three of the,
ba were jointly indicted 1t appears b
the record that they were tried seps
rately. 1t does not appear that the
ID were tried upon their own motion {
lrt upon that of the commonwealth.
mt contend shat the record ought to sho
-. it. 1t doesn't appear upon this recor
=, just exac, ly how those juries were s,
al lected. He cited section 1927 of IL
Code of Virginia.
he so contend up to this point tn,
rav this court ought to consider the IA
that these people were tried for a fea
ner full and dreadful offence without coul
gel. ] contend that this court ouQ
to consider In behalf OF these peon
that when the commonwealth tri,
lir- them separately the record must she
airy that The statutes 1927 and 1929 we
the complied with.
VITAL ERRORS.
oU- must say that there was und
haste and gross negligence whi
shows what should have been do
nes, was not done. Ny associate has call
en- my attention to the fact that failed
en- call attention to the manner in y hi
ien- these juries were selected. 1t did I
re- comply with the law.
now The doctrine has been laid down
'urt er and over, and / suppose that the
pre- will be no contention that in capi
be- cases that the record must affirmati
'urg ly show that every thing essential to
salo done was done in the trial OF the pl
T no oners See Hall, 80 Grattan 555 Sp
OF geon Case, Va, Reports 652, Mi
Tor Case in Southeastern Reporter, 152
the Is there anything more explicit Il
1un- that the jury which tried the case 81
be kept separate, and apart With
oetl~ having communication with any o
ther side parties during the trial Of
70 is case / need not cite any authori
De on this point.
ana 1t will be contended that it is T
I OF sumed that things necessary tC
hout done were done. But the record d
she not show that they were put and /
vlo- in the custody Of the sheriff.
ap- CANNOT PRESUME.
The court of last resort does not
sumo that the trial court or Judge
,NRs. it's duty. 1t presumes that the ju
did everything which appears in
records and nothing else.
Now, sir, that is our case as
lown by this Supreme Court over
70 go yer again. 1t may be argued tina
Z and G mot speak of the fact that the q
and house yard was camp OF soldi
us to whose presence we're necessary to
the a civil Judge to administer the