The times. [volume] (Richmond, Va.) 1890-1903, 1895-11-27
ks;UlNG FOR A NEW TRIAL
The Case Of The Lunsnburs Prisoners
Again Before TIE Supreme Corrt.
JUDGE H. ". PLOURNOY'S ABLE APPEAL
Attorney General scott Ais, Makes
strong Speech-Judgc Mann ErginsH
Argumcnt-Capt. George ID. Wise 10
Close the Argument To-Day.

The Lunonburg cases came up IN the
Supreme Court of Appeals yesterday
morning. the case OF Pokey Barnes be-
ing the nrst called. That day
having been set for the argument OF
the writ OF error and supcrscdeas on
application for a new trial The Com
monwealth was represented by Attorney
General X. Taylor Scott, Judge w ii.
Mann. OF Nottowsy. and Mr.. Il. q.
Southal commemorative Attorney OF
Amelia county. while the prisoners were
represented by Judge II. w. Fiournoy,
Captain George ID. Wise. Captain a. Is.
Guigon, and MIR W. NJ JustIs.
Major Scott started the argument by
saying that it had been impossible 10 get
the matter into the form desired by tne
County Court OF LunenDurg. as to the
entering of an order nunc pro tune. III
was subsequently suggested that an
agreement be arrived at by counsel on
both sides as TO the substance OF the
contents of such an order and that TINS
agreement be submitted 10 this court
with the argument, and that II this court
OF last resort should mold that the enter
ing Of such an order was necessary, th'h
an opportunity would be given TO MAKE
such an entry, provided that such
power should appear TO be vested IN
the trial court Inasmuch as II had
been impossible 10 reach such an agree
ment, he would ask that the case ne
either passed. by. In order that the triai
court may enter such an order. or that
an agreement OF some sort may ne AT
rived at at bar.
Captain Guigon stated that counsel Tor
the defence would be wiling TO enter into
such an agreement without the reference
10 the prcsncc of the prisoners, ana
Judge Mann had at first suggested that
such an order be secured, and That IL De
subsequently argued before the court OF
last resort. and should the latter deem
the presence OF the prisoners necessary
when the order is entered, then they
could be taken there for that purpose.
Counsel could not stipulate in the agree
ment what order the County Court or
Luncnbrr would enter and 1t was
therefore absolutely impossible for coun-
sci to enter into an agreement rs 10
what the contents OF the orGer should
be.
JUDGE MANN'S ARGUMENT.
Judge Mann then addressed the Court
substantially In the following manner:
When TIE motion for a writ of error was
made to enlarge the order. so that this
court o. last resort take charge of the
prisoners, ] stated that some steps had
been taken to enter "A nunc pro tune
order in the trial court. but that the
taking charge of the prisoners by the
Supreme Court prevented us from doing
so. This court then suggested that we
obtain such order. and have it subse-
quently entered. We then drew up a
statement of the facts IN the case. and
asked the County Court Of Luncnburg to
enter such an order, but the Court de-
clined 10 do So To-day. for the first
time. have come into possession of
copy of the order entered by the trial
court. Ii is written in pencil, and not
certified to- but IT reads as follows;
Whereas William Henry Marable.
sometimes called Solomon Marable. Mary
Abernathy. and Pokey Barnes were con-
victcd and sentenced of murder IN the
first degree at the July term. 1925. of
this court, and the Court. by its order of
the same time. committed the said pris-
oners 20 the Jail of the city of Richmond
for their safe-keeping until the 10Th day
OF September. 1886, when they were to
be brought back to the county of Lunen-
burg. to the usual place OF execution, TO
be hanged.
"And whereas, another order Of this
Court. entered on the 18th of October.
1896. directing the sheriff Of Lunenburg
county TO produce the bodies of the said
Marable, Alternately ana Barnes before
lag suggested 10 the court by the Attor-
ney f0r the Commonwealth that a mo-
ton would be made on that day w.ncn
would require the presence of said pris-
oners;
And the sergeant of the city of Rich
mond having refused 10 deliver the said
prisoners to the said sheriff, by authori-
~ of either of the said orders. and
whereas, another order was entered on
the 1lth November 1895, on the motion of
the Attorney for the Commonwealth, di-
recting the keeper of the Jail of the city
of Richmond to deliver the bodies Of
the said prisoners TO the said NJ. G.. Car
doza, sheriff of the county OF Luncn-
burg
And the Court of Appeals of Virginia
having enlarged its writ Of error and
supersedeas. previously granted IN said
cases. restraining the said sheriff from
producing the bodies OF the said prison
ers. in pursuance of said orders above
mentioned, which writ OF said court OF
Appeals directed that the writs of error
In these cases be so enlarged as to require
the plaintiffs in error, who are now in
the custody OF the Sergeant of the city
of Richmond, TO be retained IN such
custody until the further order OF the
court, or, If already delivered to the sheriff
OF the county of Lunenburg. said sheriff
is directed to return them to the custody
vi Sdiu ant
And the court being of opinion that il
has no authority under the decisions Of
the Court of Appeals of Virginia. to
enter a nunc pro tune order in the alb
sence of the said prisoners. doth decline
at this term 10 enter any such orders
amending the records in said cases. so
az 10 make II show that the jurors in
said cases. during said trials at each
adjournment OF the court. were put in
the custody or the sheriff OF the county.
and said sheriff duly sworn 10 keep them
together. apart from all other persons.
not 10 talk 20 them himself. nor permit
any other persons 10 talk TO them con-
ing these trials. and TO return them into
court on the following morning. respect
lively. In each case"
Judge organ. il seems from this order.
does not think he has the right TO enter
nunc pro tune order IN the absence OF
the prisoners. II counsel Of the other
side would suggest any facts which they
would like TO have entered upon the or
der. ! would not have any objection.
Judge Mann then read out five amend
ment. which he sara had been hastily
drawn up. and which were embodied I'm
the latter part OF Judge Organs order.
lie added that he would like TO have
those amendni entered I'm the order.
JUDGE FLOURNOY'S OBJECTION.
Judge tlournoy next addressed the
Court: IF your Honors please" he