The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-02-10

Flrst--Tfat counsel must necessarily
have great latitude In the argument OF
case.
Second-Appellate courts will not IN
terfere, unless It clearly appears from
the record that the rights Of the prison
er were prepudlced by such line of argu-
| ment.
Third-That the trial court. on objec-
| ton and motion. may direct the jury TO
| disregard an argument, and exclude 1t
from the consideration. and that there
by the effect OF the improper argument
may be ,neutralized.
In the state VS.. Shawn II Is said. I'M
| proper remarks OF counsel. should not
cause n verdict. plainly right. and in
lieu OF which any other verdict would be
| manitestly wrong, to be set aside. And
\ IN the same case, on the question OF
iirst degree murder the court says ut is
| difficult 20 limit the consideration which
shall govern the jury. II deducible from
the nature OF the crime. and its perpe-
traitor, as manifested by the evidence.
Latitude Allowed.
Under the latitude thus said to be al
lowed counsel, It Is permissible 20 refer
to any and all facts and statements OF
witnesses who testified. and draw infer
ences thercfrom. II that Is SO, then was
1t error OF counsel to SAP: What do
they ask OF you" They ask the years
that remain OF that vicious life OF
theirs: they nsk verdict that will per-
NIT them TO TO back to the brothel;
their eye is on the red light that shines
In the night, and lures them instead OF
warning them OF danger. Their desire
l is m no hanl M, hot Iii ,J ~, ,goI.
| ISOLATION"
select these words from the argu-
ment. as probably the harshest express
slons TO be cound In It,. and as state
ments to which the court did not call
che especial attention OF the jury. with
| directions TO the jury to disregard them.
| and as words which prisoners counsel
did not specifically point out. and ask 10
be excluded. II these words had been
used and uttered in dsparagement Of:
prisoners credib!llty. there could be no
Improperly in such use. The red light
and brothel, the Jail and pen!tcntiary
secritude and lives more or less vicious,
are all entitled TO some weight Oh the
question of prisoners vcracity as wit
nesses. May not these words, also. be
used as reminder to the jury that
sympathy and sentiment would be mis-
placed. II extended TO the prisoners In
view Of the lives they had led. as dis
closed By the evidence. and that the
jury should not. therefore. yield TO them
anything on account OF sympathy for
themselves. parents and stcrs.
II is to this end. and on this point.
probably. that the speaker intended to
have them bear. and they were not L.
relevant for that purpose. Again, these
words have a tendency to call the jury's
attention to the fact that coming as the
prisoners did. directly from the brothel
to the commission OF the crime. the
prisoners might be easily presumed 10
harbor In their hearts that at-ocious
malice which. il harbored. by the STAY
er of his fellow man. can only be cX-
plated by giving up the sluyer's life.
Good character. atflrmatively shown.
may raise reasonable doubt. ITSELF of
guilt. II this good character Is not
shown, and the good character presum-
ed by the law is destroyed by evidence
of a bad or doubtful character. 4 felon-
iouS act by the possessor of such dis
paraged character may well be presum-
ed the more readily and naturally TO
spring from malice. and from "a heart
regardless Of social duty, and fatally
bend on mischief"
The Facts Were Strong.
On the question, then. of crediblity,
sentiment and sympathy. and malice,
the sentences quoted cannot be said 70
be Irrelevant. a2d unsuggested by the
evidence and the circumstances OF the
case l
Under the license OF large latitude, al
lowed counsel, In argument. l cannot
sag that any OF the other remarks are
SO far beyond that latitude as to be
plainly prejudicial.
Comparisons are odious, and T do
not, therefore. attempt to compare the
language complained % here with that
OF other cases. Suffice it to say the
facts and circumstances OF this case
were strong, and almost always TO the
disadvantage of the prisoners. and they
gave counsel for the state opportunities
to draw and suggest many differences TO
their detrlment.
Although no questions OF evidence
were discussed Oh the argument Of the
motion for 4 new trial, I: hace. never
theless. gone over the evidence In great
part. 1t seems to me to be singuiarly
free from error.
In considering the points raised on
this motion for new trial, I have en-
deavored to do so under sense OF re-
sponslbility as profound as though there
was no appeal from my decision there
on; and while override the motion for
new trial, my sorrow for SO doing Is
somewhat conseled by knowing that the
matter will not be permitted to rest
here, but will be taken for review, IL
necessary, to all appellate courts. Such
review ! Will aid and facilitate all
can, believing that human life should
not be taken. unless the Judgment and
sentence of the trial cnurt Il annrovel