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


tho evidence had been heard, and when
the fury retired the most important time
In the trial OF these women. ana az
time when the jury should nave Deen
/ kcpt aparf from the other people, the
statement appeared upon the record that
/ the fury was sent to their room 10 con-
! suit upon n verdict. BY the record. the
Jury went out and the jury came IN am
| there was nothing said about the shefln.
/ l Bishop Criminal Procedure CD edJ'
section 1877. says: The record mus. az
Tentatively show that all the esseh htl',i
| formallties I'm the procedure nave feen
/ cornDiicd with. and a failure 10 90 80
| constitutes error on the face OF the recoru.
| OF which advantage may ne iansn Oh l1. a
! writ OF error. even though opJeCuo" 80
| not made by the accused III INC ui"i
court. D."
1t seems like mockery to determine
! that your Honors would not take ho -.
| Of such errors because no objection va va
| raised during the trial, when ~ y W.
known that these ignorant woins,n 49, No.
| protected by no counsel, VINO coHiu notc
/ raised any objection at the Uih' % w
! trial Tho fury must be kept tosethtl.
/ apart from all other persons anu no.
/ be allowed TO speak 20 others auvHi W
trial. This rule Of procedure mas "ev .,.
] followed almost uniformly IN an ""i
American courts and fhis law. Wli'ii
I halls from England. has been recoHnl@ep
/ In Virginia from the very iounua' i ivn -.
| the State. Jufics i'm felony cases HuIlls
| the adiournments Of the court huS' pr
| iu the custody Of the sherih, ana lii-
| officer who mas charge OF them must uv
| sworn not 10 speak to them himself. nor
| TO suffer afv other person TO speak 10
them. Tho question raised here mas never
| been before our courts except lh Oh"
| case 70 which the Attorney. Nehela re-
| fCrrpd but fan that case the question
raised here did not arise. The record IN
the case referred TO showed tiial the
prisoner had been committed 60 the Gus
| tody OF the sheriff. and the Juesu9'nl
| arose as 10 whether the verdict should
boz set aside and a new trial granted ne
cause the record failed 10 show whether
| "a special oath had been admitted 10 mar
| officer This court has never decided tnat
! II the record fails to show that tho jury
during the adiournments of the court
was committed so the sheriff. this should
| not be considered an error
THE BURDEN OF PROOF.
The fourth assignment OF error Is that
thc trial court erred IN INC ms l uv,l. -
which 10 gave. copy OF which aVnt
/ upon the record but especially IN li1at
wherein the court insuucts the july
that the burden OF proving an ann IS
upon the prisoner TO the reasonable salts
| faction of the jury, and that all the cNi-
nencf whatever OF an abb must ne con-
sidcrod on the general case with the rest
| Of the testimony, and Il rea7ona pc
doubt OF the guilt Of the prisoner be
| raised by the evidence as whole, the
| doubt must be given In favor OF innc-
cence by an acquittai OF the prisoner.
by careful inspection OF TINS insiruc1
to mislead the Jury
II should have been made TO appear
plainly that wherever any evidence IS
part Of the proper case OF the prosecu-
/ ton, the burden of proof Is upon the
| .5.olc, luaL tnclc can ne 40 presumption
/ .lO4A the manure GA the ueicnuuht 40 pro-
| duce such evidence even when IN his own
/ hands. Even II II be true that Whele thc
defence Is an alihi, the burden Of proof
| is on the defendant, n should IN that con-
I nectiOn have been stated by the court
| that TO establish an alibi IL is not neces-
cary that the jury should be fully satis-
/ fed Of IT'S truth.
IN. Acknowledgement has taken the
| position that as there Is no evidence IN
/ the record in regard TO the Instructions,
| this court can form no judgment whether
1 the instructions were correct IN many
respects this Is true, but there are IN
| structions-.
! record" queried member Of the court
They are here" replied Captain Wise,
certified by the clerk, and II is known
| TO the court by that what instructions
were given, and IL seems 10 me that If
| there is an error In them they ought TO
De corrected Where there IS an eNil
! there ought TO be remedy under the
! Jaw. The Attorney has said the
| instruction in question was true delv-
crance OF the law az respects the plea or
| an abb. am not aware OF such a plea.
! WHAT we call an alibi is evidence IN re-
| buttal on the footing OF all Other cNl-
| dcnce in rebuttal. The presumption OF
innocence attaches 10 every accused from
! the beginning 10 the end Of the trial, ana
| the burden OF proving the contrary IS
upon the Commonwealth. IT. an ann
| raises any doubt. the accused Is entitled
10 acquttal. because every doubt IS to
| benefit the accused.
CHANGE OF VENUE
As 10 a change of venue. section 1915
| of the Code provides that circuit
| court may. on the motion OF the ac-
! ed Dr lf a
! mOnwealth or without such motion. Tor
| sCOd cause, order tine Nenire or crifnl-
| nal 10 such court 10 be changed 10 some
| other circuit OF corporation court, ana,
! ln like manner. the court of "A county may
! order the venue TO De- changer TO the
| court OF another county or the court
| of a corporation 10 another circuit or
corporation court.
| The gentlemen on the other side have
| argued that a motion Tor cnange OF
| venue ought 10 have been preceded by
| motion to obtain jury from another
| county. But ! hardly think the gentle
| men read the statute, and think neither
| of them could have read the decision OF
| The Supreme Court of Virginia referring
| 20 this case. Under our statute 10 is
| sometimes proper that tine JUICE should
| order achange OF venue in his discretion,
| and We have the authority OF our own
| Supreme Court on this point IT such
| condition of affairs existed In Lunenburg
| as TO Justify that this discretion be We ted
| i'm the judge Of that County court then
| the vcnire ought TO have been changed.
i For the failure of exercising such
duty the action Of the judge Of that court
! is subject TO review In this court
In our Bill Of Rights are enumerated
| certain principles which should DE held
! to be sacred and inviolable. IN IL are
! enumerated those rights and principles
| which are regarded as being among the
| most important munimtnts Of our lives
| and liberties At has cost oceans ol blood
| 10 secure them, and they viii not be sur
rendered without long, bitter, ana de-
| tcrmined struggle Chief among the pro-
! visions Of that instrument Is that which
! declares THAT in all capital or criminal
| prosecutions man hath right 10 de-
| rnand the cause and nature of his ac-
| cusatiOn. 10 be confronted with the ac-
cusers and witnesses. TO call for evidence
! in his favor and 10 call FOR speedy
| trial BIZ an impartial jury Of his vicin-
age. WtInOut whose unanimous consent
| ne cannot be found guilty, nor can De
| he compelled 10 give evidence agains,
| himself. that no Aan be- deprived OF his
| liberty except bv the law OF The lana
| or the judgment Of his peers These
| the government and a shield 10 the ac-
| cusod.
Free government and the blessing OF
| liberty can only be preserved 10 our
people by q firm adherence TO Just'e.
moderation, temperance, and virtue.
Better that the guilty should escape pun
ishment than that conviction shorlu nc
accomplished by the overthrow OF lne"e
| Fundamental principles. II their violation
be permitted the outrage. VIII pe toiiSSN tta
by the extinguishmcnt OF the HEnt OF the
law. and we shall be left IN Garkness
and gloom. In our great cnarter or
liberty there Is no provision more bild-