Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1897-10-29
OPINION OF ENGLISH AND DENT

OPINION OF ENGLISH AND DENT
| In the Case Of Robert W. Eastman Against
Judge Holt-A Document Remarkable
for the Plxinness and Force of Its Word
ing.
| Special to the Register
Charleston, w. Va, October 28.-In
the case of Col. Robert w. Eastman VS..
Judge j. H. Holt, of the Tucker
county Circuit Court, Judges English
and Dent handed down decision ia
vorable to the plaintiff which certainly
speaks quite plainly and leaves no
doubt of the light in which these mem
bers OF the Supreme Court see the acts
OF the defendant. Judge Holt.
One OF the most noted cases in the
criminal annals of the State was that
OF Col. Eastman for the killing of
Frank E. Thompson in Tucker county
last spring.
The case came before the Supreme
Court, Col Eastman asking for a writ
of prohibition restraining Judge Holt
from trying him, on account of error
and prejudice shown When the de-
cision was given there were two favor
ing the writ, viz: Judges Dent and
English, and two opposing, viz: Judges
Brarnon and McWhorter.
Robert w. Eastman, petitioner, belng
in custody of the sheriff of Tucker
county on accusation of felonious kill
ing of one Frank E. Thompson, the
grand jury, at the June term of the
Circuit Court of said county, after in
vestigating the charge, returned an in
dictment for manslaushter. The
prosecuting attorney being of the opin
ion that the prisoner should be indict-
ed for higher offense, with the con-
sent of the presiding judge entered
nOlle prOsequi. The prisoner there
upon moved his discharge or admission
to bail. Both motions were overruled.
The judge directed the drawing and
summoning of another grand jury for
the purpose of considering the matter
at an adjourned day of the term. This
grand jury being duly summoned and
empaneled, the judge charged them at
some length to the effect that, If
homicide was shown, the jury should
return an indictment for murder, and
leave the degree of the offense commit
ted to be determined by the petit jury,
contrary to Sec. l, Chap 144 of the
Code Homicide was admitted, but
claimed to be justifiable one. Be-
fore the jury had reached conclusion
and while hating between two opin-
ions, undoubtedly cccasioned by the err
roneous charge Of the judge, he, in
stead of correcting his error, uncere-
moniously discharged them as dis
agreeing jury. He Immediately Or
dered third grand jury to be drawn,
and summoned to a future day of the
term, and one Haller-nOt regular
deputy-was appointed at his instance
to assist in summoning the same.
"On the return day fifteen Of the
grand jurors appeared and the judge
proceeded to examine them on their
voir dire, and accepted such, as were
satisfactory, and rejected such others,
five in number, though legally qualified
grand jurors, who, for some reason not
disclosed by the record, and known on
ly to the judge, were not satisfactory
to him. He then caused an order to
be entered directing the sheriff to sum-
mon six others not drawn from the
jury box, and yet, as shown by his
answer, he did not permit the sheriff
or one of his deputies to execute this
order, but orally commissioned said
Halter to execute the same. The jurors
summoned were acceptable. Having
had them duly sworn, he then proceed
ed to deliver lengthy, argumentative
charge, which was to the effect that,
if a homicide was established by the
evidence produced before them by the
State, it was their duty, without call
ing for other witnesses or further in
vestigation, to return an indictment
for murder, and allow the petit jury
to determine the degree of the offense
committed. He then placed the alleged
grand jury in charge OF the sheriff,
and would not permit them to separate
or communicate with anyone until they
returned an, indictment for murder, and
received the thanks of the judge and
their discharge. The judge admits the
truth of this statement, in substance,
as set forth, but justifies his course on
the ground that it was necessary to
obtain an impartial grand jury and
prevent it from being unduly influenced
by outside pressure. 1t is manifest
from this that an impartial grand jury
meant one that would find an indict-
ment for murder, in accordance with
the evident desire of the judge, as
shown by his several instructions to
the successive grand juries. That the
judge, either through lack of exper-
fence or unusual ZEAL was led to COM
nit numerous errors, harmless or pre-
judicial. cannot be denied; nor is it our
place to ascertain whether they were
justifiable, under the present applica-
ton"