The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-12-05
JUDGE HERYEY
ON DEYINNEY.
JOHNSON CASE.
The Application For a New Trial in
the Criminal Court is Over
ruled and the
MATTER WILL Be TAKEN UP
To the State Supreme Court Of APP
peals-Judge Hervey's Deci.
sion Given in Detail

PVA4A-J 006S ASANVS @SSSs
sion Given in Detail
Judge Hervey has declined to act IA
vorably on the motion for a new trial
made for Clarence johnson and Hugh
DevInney. by their attorneys. Congress-
man Dovener and Mr.. s. o. Boyce. The
courts opinion was read yesterday af-
ternoon at o'clock. There were pres
ent, Messrs. W. C. Meyer and John A.
Howard. who had conducted the prose-
cution. and Mr.. Boyce, representing the
defendants. together with a number Of
spectators, mostly occupants of offices
in the clty-county building, who had
learned that the decision would be an.
nounced. johnson and Deyinney were
not present,
Mr.. Boyce stated to the 1ntellIgencer
reporter that the defense would carry
the case up to the court of final juris-
dIctlon, the state supreme court Of APP
peals. Prosecuting Attorney Meyer
wrote an order, showing the action Of
the criminal court of Ohio county had
been sustained, and that the defense
excepted, and this was signed
by Judge Hervey. The case now comes
back to the criminal court, where the
men will be re-sentenced. unless
(which Is reasonably eertaIm Messrs.
Boyce and Dovener ask for stay to
enable them to take the case up to the
supreme court,
Judge Hervey's decision, in full, was
as follows:
State OF West Virginia VS.. johnson and
Devinney, writ OF error to the crimi-
nal court Of Ohio county.
While large number Of speciaca-
lions of error have been assigned
find Il necessary to notice only those
which have been insisted upon in argu-
ment OF the case before this court.
These Specifications so relied upon re.
late to the Insuificiency of the lndict'
ment; the refusal OF the court to grant
the motions for 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.
It is insisted by counsel for the de-
PENDANTS. that the form Of indictment
In this case (Which Is the form pre-
scribed by statutel, while good for
murder In the second degree, will not
support verdict OF murder In the
first degree. This Is not an open queS-
tion for this court Our supreme court
has repeatedly held this form Of in
dictment sufficient. In State vs.. Doug
lass. II W. Va. 537, the particular de-
feet relied on was the omission to
charge the homicide as having been
done with generalization (Which is the
point made In this easel, but the court
said that this question was settled and
would not be re-opened. The motion
for continuance was based on the
absence of two witnesses whose evil
dence was desired by the defendants.
Afterward, on the trial these witnesses
appeared and testified. and no injury
can have resulted from the overruling
of this motion. The very fact that the
attendance Of the witnesses was secur-
ed 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 change of venue
was supported by the affidavit OF the
defendants and was based on three
grounds: First. that the public mind
throughout the county was prejudiced
against the defendants by the accounts
Of the homicide which were published
in the newspapers. Second, that this
made manifest by the vOir dire eXami-
nation Of those who were summoned to
attend the court as jurors for the trial
Of this case. Third, this feeling was
shown by the circulation Of subscrip.
ton paper to raise funds to secure the
aid Of counsel for the prosecution at
defendants. ~
It is not necessary for me to say that
the affidavit OF defendants considered
by itself shows no ground for change
OF venue. It alleges that by reason OF
the newspaper comments on the homi-
eide the community was preJudlced
against the DEFENDANTS: but Il sets out
no evidence OF this untrlendllness ex-
cept the circulation Of the subscription
paper referred to. This allegation ia
ken by itself amounts to nothing. The
fact appears from an examination 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 Nc
Laughllns for the purpose Of raising
funds to employ counsel to assist the
prosecuting attorney. But while this
would dIsqualIfy for Jurors those who
took such an active interest In the case
as to subscribe 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 af-
fected the public mind or feeling with
regard to defendants. The fact that
number Of persons contributed sums OF
money to defray the cost OF counsel
employed TO assist the prosecution OF Il
case does not show such general pretu-
dice against the accused Rs to require
the court to grant change of venue.
People vs. Graham, 81 Cal, 265; Worm
ley's case, 10 Graf. 674.
An affidavit for change OF venue must
state facts and circumstances from
which the conclusion IL deduCed that
fair trial cannot be had The court
must be satisfied from the facts AZ
they appear that defendants may not
get fair trial, and It will not rest It's
decision on conclusions or opinions OF
the defendants or their witnesses. The
conclusion is to he drawn by the court
and not by those who make the atil-
davlts and II must afIlrmatlvely appear
from the fncts and circumstances get
out in the niIidRvits that there Is such
n feeling pervadlng the community aS
VIII prevent q fair md Impartial trial.
State VS.. Douglass, II w Va. 53T;
State vs. Furbock, 20 Kan, 532: People
w SnmmIs. Hun. $780, People vs.. Ne
Cnuley, Cal. 3S2: Peters vs. United
States. 80 Pac., 1901,
There Is nothing in the newspaper
publications filed with defendnnts' af-