The times. [volume] (Richmond, Va.) 1890-1903, 1895-11-27

| July Is entered the fOlloWihg oruer'
| Ordered, that j. II. Derbyshire. major
| commanding. &c, be authonzn 70 re-
move from the county jail. In his discre-
ton. Solomon Marable, Mary Abernathy'
and Pokcy Barnes, TO the court-house
| building for their safe-keeping, unui
| the opening, of the court tomorrow
morning at o'clock
The record, therefore. shows that the
| trial Judge took the prisoners Out Oh
/ the keeping OF the sherin ana Jaiief'
! and for their own safety put them mo
! the hands of armed men, for protection III
tho temple of justice In the night tine.
Another question 10 be CONSIDERED Is
| whether the certified action OF tho gov
! ernor Is not to be considered as part Oh
| the record. If that be so, II appears tiiat
| these people were confined In the jail oi
| the city OF Petersburg and wren the
| time for their trai came the Sheriff went
TO the Governor with letter from the
| Judge OF the trial court and endorsed
/ 10y the Commonwealth Attorney, asking
| for military escort which was granted
and went with the prisoners and remain
| cd with them until they were again sent
away by the order OF the same court 10
| the Jail In Richmond, with soldiers &C.
| fore them. soldiers behind them, and sol
| diers on each side OF them. II Is q grave
question to he considered by this court,
| whether the lives OF these pttple are 10 De
| taken AWAY wher they were tried under
| such circumstances. when jury In the
| box Is informed by the presence OF the
! military that there Is an assemblase or
| people in the nciehborhood eager 10 ta1e
the prisoners lives away without the law,
| Is ii possible for a jury 10 try these peo-
| pie canddly and dispassonately under
| such circumstances? The law should lie
| laid down by the courts that no man be
tried Tor felony when it appears neces-
sary for the citizen soldiers TO step In for
his protection from an Infatuated and
! lawlcss mob.
We submit that these people II guilty,
| shall be condemned to death after fair
and impartial trial, aIrt the people who
| murdered that old woman ought TO die
whoever they may be. but they are en-
| titled 10 fair and impartial administra-
| ton of the law in Virginia.
ATTORNEY-GENERAL SCOTT.
Attorney-General Scott, In replying to
Judge Flournoy, sail: | am quite sure
| that all parties desire a fair and impair
tial trial OF a case In this court as well
as In the trial court. The appellant IN
this case, Pokcy Barnes, stands justly
indicted with two others for the murder
Of that old woman In Lunenburg county.
The procedure of the case is laid down
Ivy the statute. Major Scott thetn ex-
planned how an Indictment was properly
be arraigned. how. after her pleading. the
Jury had 10 be summoned TO try her as
shown In the record The jury was
taken from the venire without any OBJ
lection on the part of the accused.
Major Scott next called the attention OF
the court to what he called multitude
of matter foreign to the record; Am
dayits. military orders. he said. abound
profuscly. but the record OF this case is
legal. While orders and affdavits are
~, vat fa
long there. and the court must eliminate
all this super fiuous matter
Counsel on the other side raises an OBJ
lection that the prisoners have been tried
separately. when they were indicted joint
w. but the record shows no motion in
the matter on the part OF the prisoners;
on the contrary, the separate cases have
been taken up and are now pending be-
fore this court of last resort on separate
orders II is trifiing with serious matters
I'm a case when the clerk fails to write out
every detail in the record. that the Court
Of Appeals should interfere upon the as
sertion that mistria has taken place.
The record shows affirmatively that the
trials were he'd separately. and II must
necessarily follow that the trials were
severed by the Commonwealth. But that
is merely a matter OF form. and II is not
shown that the parties were injured by
these separate trials. take II, therefore.
that this assignment OF error is without
foundation, II Is unreal, and does not
affect the trial.
IN THE 5HER1FF'S CUSTODY.
Another objection raised by counsel on
the other size Is 10 the effect that the
record does not show that the jury had
been selected In the proper manner. If
the selection was made improperly, the
objection should have been raised during
the trial in conformity with the provision
OF the statute, and not IN the court OF
last resort.
Another objection referred TO the fact
that the record did not show that the
jury had been kept together and apart
from others by the Sheriff, as prescribed
by law. he sheriff is a sworn officer of
the Commonwealth, ana 10 apply an adj
ditional oath TO him Is therefore unneces-
saly. The prisoners were placed in the
custody Of the Sheriff, they were tried in
the presence Of the court, and found
guilty. and yet IL is claimed by counsel
on the other side that the trial did not
conform with the provisions Of the statute.
4 change of venue was not asked for
because these people were excited. and
no effort was made even TO secure a jury
from an adjoining county, such step not
being deemed necessary, because the jury
selected appeared TO be free from eXccp-
ton. The Court Of Appeals mas no right
TO say what occurred, except 50 far as is
stated in the record, and yet this court is
asked TO presume that the law has been
violated The presumption should rather
be that the record is absolutely true.
Objection has also been raised to the
instructions submitted 10 the jury by the
court
not now been presented TO the court, yet
they are contained in the petition. and
they refer especially 10 the fact that an
accomplice in crime can give testimony
aiding In the conviction OF another. The
objection also refers TO the proving OF an
Glioi which burden is of course. saddled
on the accused. 1T is also claimed that
the record does not show that the jury
has been polled. but the record shows
that the jury after coming into the court
room. rendered verdict. This fact APP
pears on record, and il is al that is neces-
sary, for II actually implies that the jury
has been pOlied.
\ trial court certainly has the power
over its record. and can amend II. When
ii is I'm the knowledge Of the judge that
the record is imperfect. IL is In his power
TO make 1t perfect. and it is his duty TO
see that this is done. but, Of course. the
must be part of the trial proceedings.
But what limit is placed on this work?
is IL 20 he limited to the term of the trial
onlv2 Ii a false record is TO be corrected,
there is no limit TO the power of judge
TO correct a wrong II is his privilege and
his right in such a case TO enter a nunc
pro tune order so that the record may
tell the truth. 1t has been said that this
has been a mistria because soldiers were
attending the court proceedings The or
der TO have military present at the trial
was by no means improper. If ii is 10 be
part Of this record. because the statute
provides that posse cOmitatuS shall
come to the aid of civil officers whenever
needed They still remain TO he in the
charge Of the civil officers, and in this
instance the justice of the trial court
did Just exactly what he should have
done, and there is therefore no right
lot