Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1895-09-13


that the record must show, afiirmatively.
not that panel Of sixteen men were
elected. but that n panel Of sixteen men,
free from exception, were selected. Ihls
was not an irregularity which must be
taken advantage of under the provisions
of section 1856. but IL was a substantive
act of the court. which the provisions or
section 4O23 required the trial-court to
perform, the performance Of which should
appear upon the record. 1t Is
not TO be presumed that the trial-court
selected sixteen Jurors, free from ex-
ception; II must affrmauvely appear that
II did select a panel Of sixteen men. free
from exception. Your Honor is again
referred to the cases of Hall VS.. the Com
monwealth, s0th Virginia Reports; Spur
econ VS.. Commonwealth s5th Virginia Re-
ports, and Myers VS.. the Commonwealth,
10Th volume Southeastern Reporter.
RECORD DOES NOT SHOW.
The third assignment Of error Is that
the record does not show that the jury
which tried your petitioner was kept TO-
gether, apart from all other persons, ana
when not in the presence OF the Court
was committed 10 the custody OF the
Sheriff, with instructions from the Court
not to speak to them himself or suffer
any other person to speak 10 them touch
ing the trial OF your petitioner; and al
leges as a matter of fact, that eaid jury
was not kept together. apart from all
other persons, and when not In the pre-
sence Of the Court were not placed In
the hands Of the Sheriff, with instructions
to him not 10 speak 10 them
himself. or suffer any other per-
your petitioners trial. The record shows
that after the jury was selected TO try
your petitioner they were adjourned
until tomorrow morning at o'clock;
that on the day TO which they were so
adjourned. after fully hearing the evil
dence. were sent TO their room TO consult
of their verdict, and after some time
returned into court. and were adjourned
until tomorrow morning at half past
o'clock" SO it appears affirmatively by
the record that said jury, after being
selected and sworn, were adjourned
without having been committed 10 the
custody Of the Sheriff, as the law re-
quires; and after hearing the evidence
In your petitioners case were sent to
their room to consult of their verdict.
without being in the custody of the
Sheriff or any sworn officer Of the court.
as the law requires: and after some time
were not brought into court. but ere
turned into court. and were again lad
journed until tomorrow morning at half
past o'clock" When the jury retire
to deliberate on their verdict the law
requires that they shall be put in the
care of a sworn officer. This provision Of
law has been construed and expounded
with the utmost strictness ia favor Of
parties charged with crime In many
cases decided by the Court Of Appeals
of this Commonwealth. and by all stand
ard text writer's on criminal procedure.
In capital cases IL is required that the
fact must appear on the record that the
jury, when it retires from the presence
OF the Court. must be In the custody Of
q sworn officer.
PROVISION FOR SUCH CASES.
1t may be argued that the fact that
no motion for new trial and no mo-
ton in arrest of Judgment having been
made by your petitioner, she Is now de-
prlved of the right to ask an appellate
court TO correct errors which she might
have asked the trial court to correct.
The doctrine, both in England and Ameri-
ca, has long since been laid down that
a party charged with crime may obtain
a writ Of error from the appellate court
for errors which appear upon the face
OF the record. which he might have had
corrected, either by demurrer or mo-
ton.
See Chitty's Criminal Law. chapter 8,
p; Spurgeon VS.. the commonwealth
seth Virginia Reports: Simmons vs.. the
Commonwealth, s9th Virginia Reports;
Hall VS.. the Commonwealth, s0th Vir-
glna Reports; Meyers VS.. Common
wealth. 9th. S. Ern Reporter.
As hereinabove stated. your petitioner,
by reason OF her ignorance and need OF
proper counsel to advise and aid her
.fafo "a Ia
proper steps to have the evidence which
was adduced upon her trial certified by
the trial court and made a part OF the
record She Is now advised that brief
statement of the facts and circumstances
connected with and concerning her trial
I aforesaid should be presented to your
! Honor AS far as your petitioner IL ao'
vised. no person has heretofore been de-
| prived OF the advice and aid or counsel
! in a trial before "A court Of competent
Jurisdiction which involved capital pun
! ishment, and therefore your petitioner
case. in many respects. Is necessarily
without precedent Therefore II Is thai
your petitioner may be excused for pre-
| ssnting 10 your Honor a brief statement
| outside OF the record Of the trial, which
| she now submits.
REVIEW OF THE FACTS.
The facts are that Mrs. Lucy Jane Pol
lard was found dead In tbs yard OF heI
house, In the county OF Lunenburg. or
the 18th day OF June. 1856. Her husband
was the first person TO see her dead body
which he discovered lying near his house
between and o'clock in the Afternoon
Of the day on which she was killed
that he Immediately gave an alarm by
the ringing Of bell In his yard: thai
! Mary Barnes, Pokey Barnes. Mr.
| Clements. the constable Of the county,
and your petitioner very soon thereafter
appeared and witnessed the dead body
! Of his wife at TIE place where he found
It. Your petitioner, assisted In shroudine
the corpse and did such other things
AS the occasion required. That on the
following morning your petitioner, TO-