Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1899-12-05


ence Johnson and Hugh Devinney, con-
victed of the murder Of Charles Nc
Laughlin, and under sentence of death,
the Court refused the motion for a new
trial. appeal from the Criminal Court,
finding no material error. The opin-
ion of the Court is herewith printed in
full. The case will now be further ap-
pealed to the Supreme Court of the
State, where a decision will probably
not be returned for some months to
come.
State of West Virginia,
VS..
johnson and Devinney.
Writ of error TO the Criminal Court of
Ohio County.
while a large number of specifications
of error have been signed l find it necessary
to noticeeonly those which have been in
sisted upon in argument of the case before
this Court, These specifications so relied
upon relate to the insuffeiency of the
Indictment; the refusal of the Court to
grant the motions for a continuance and
for a change of venue; improper remarks
by counsel for the State during the argu-
ment, and errors in instructions granted
on behalf of the State.
1T is insisted by counsel for the de-
PENDANTS that the form of indictment in
this case (Which is the form prescribed by
statue) while good for murder in the sec
ond degree, will not support a verdict of
murder in the first degree. This is not an
open question for this Court Our
Supreme Court has repeatedly held this
form of Indictment sufficient. In State V.
Douglass, Al w. Va. $751; the particular
defect relied on was the omission to charge
the homicide as having been done with
reconciliation (Which is the point made in
this case but the Court said that this
question was settled and would not be re-
opened The motion for a continuance
was based on the absence of two wit
nesses whose evidence was desired by the
defendants Afterward, on the trial, these
witnesses appeared and testified, and no in
jury can have resulted from the overruNng
of this motion. The very fact that the at
tendance of the witnesses was secured at
the trial shows that, by proper diligence,
the defendants were able to get them, and
this diligence they were bound to use.
The motion for a change of venue was
supported by the afffdavits of the defend
ants and was based on three grounds:
% That the public mind throughout the
county was prejudiced against the defend
ants by the accounts of the homicide
which were published in the newspapers:
% That this feeling against the defendants
was made manifest by the -voir dire exam
nation of those who were summoned to
60 I
of this case; go This feeling was shown by
the circulation of a subscription paper to
raise funds to secure the aid of counsel for
the prosecution of defendants
1T is not necessary for me to say that
the affidavit of defendants considered by
itself, shows no ground for a change of
Venue. 1t alleges that by reason of the
newspaper comments on the homicide the
community was prejudiced against the de-
PENDANTS; but it sets out no evidence OF
this unfriendliness except the circulation
of the subscription paper referred to. This
allegation taken by itself amounts to moth
ing. The fact appears from an examina-
ton of one who was familiar with the
manner in which the subscription was
raised, that the paper was circulated
among the fellow workmen of one of the
McLaughlins for the purpose of raising
funds to employ counsel to assist the pros
ecuting attorney. Blu while this would
disqualify fos jurors those who took such
an active interest in the case as to sub
scribe to this fund, there is nothing in
the fact to indicate that this activity OF
some of the friends of the Mclaughlin
family in any way affected the public
mind or feeling with regard to defendants.
The fact tfvt a number of persons con-
tributed sums of money to defray the
cost of counsel employed to assist the pros
ecution Of a case does not show such gen
eral prejudice against the accused as to
require the Court TO grant a change of
venue. People V. Graham, q Cal 265
Wormleys case 10 Graf. GA.
An affidavit for change Of venue must
state facts and circumstances from which
the conclusion is deduced that fair trial
can not be had The Court must be salts
fed from the facts as they appear that de-
PENDANTS may not get a fair trial and it
will not rest it's decision on conclusions
or opinions of the defendants or their
witnesses. The conclusion is to be
drawn by the Court and not by
those who make the affidavits and it must
affirmatively appear from the facts and
circumstances set out in the affidavits
that there is such a fec!>eg pervading the
community as will prevent fair and inn
Gartial trial. State v Douglass Al w. Va.
bS7; State V. Furbeck 20 Kan. $50; People
V. Sammis, Hun. $50; People V. McCauley,
1 Cal SS3; Peters V. U. S. 80 Pac 1881.
There is nothing in the newspaper pub
locations filed with defendants affidavit
which justifies the conclusion that the
public mind was so prejudiced that de-
PENDANTS could not get a fair trial in Ohio
county. The language of the Court in
State " Weems So Iowa 426, we'll applies
here. In that case the Court said that the
affidavit made for the purpose of securing
change of venue because of newspaper
articles, left on the mind the impression
tina the conclusions of affiants were based
on their judgment of what would be the
effect of such publications. The recitals
of the newspaper articles are not to be
held as having affected the public at large.
In that case the Court held that although
the paper reports referred to mobs and
possible lynchers these reports did not
establish the fact that the people were
preiudiced TO such an extent as to pre-
cluGe a fair trial. And in several cases
where the papers had published sensa-
tional accounts of the crimes charged and
contained infiamnlatory articles Genounc-
Ing the accused, and calculated to arouse
public sentiment against them, the Courts
held that this did not show sufficient
cause for change of venue. State V.
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