Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1899-01-05

other man fire shot except the color
ed man (Robinson) and | believe he
swore to the truth. Three
men in that (McLaughlin party
had revolvers, and had said they
would Give it to them!' and they had
given it to them on the previous
Thursday morning." Kemp, the bar
keeper for Duffy, and witness for the
State, who testified to seeing one OF
the defendants hand q revolver to the
other at the saloon, and heard one say
to the other, There they go; let's give
it to them." was
SEVERELY CRITICISED,
and the Captain said that evidence
only added another blot to the
purpose of Frank Mclaughlin and
Craig to swear away the lives OF the
defendants" for Kemp acknowledged
that he was an enemy of the defend
ants. The Captain was convinced the
evidence of Kemp was false. There
was no evidence In the case that there
was more than one pistol between the
two defendants, yet to accomplish the
purposes OF the prosecution it had to
be imagined there were two. Under
no circumstances could this be murder
in the first degree. Proceeding to
argue this proposition, Capt. Dovener
reviewed the nature of the fatal wound
and the course of the bullet which
produced it, his contention being that
the shot could not have been fired at
Mclaughlin back, and that Charles
Mclaughlin had fired at defendants be-
fore the fatal shot hit him, and if he did
it could not be murder in the first de-
gree, because the defendants were fir
ing in self-defenSe, and this must be
so, he thought, because the physician
had testified that after the bullet hit
Charles Mclaughlin in the arm he
could not have aimed and fired, yet he
fired four shots in all, two at random
after he was hit. And yet they call
this murder in the first degree!" The
speaker thought the bullet in the
edge of the door was fired by Craig,
and that they were around there
afterwards gouging out the bullet, that
there might be no tell-tale left in the
shape of bullets of a certain calibrel
Johnson and Devinney did
not run-they walked away; the man
who run was Craig, the man who had
a seven-shot revolver. Craig
FIRED THAT FIRST SHOT!
Then another shot was fired. Did that
come from across the street? Craig
fired the first shot. and Charles Nc
Laughlin fired the second, and the
bullet marks show it. The
circumstances all point to this man
Craig starting this whole unfortunate
business don't say he intended to
kill him. but he was the cause of his
DEATH"
The Captain then took up the legal
features involved, quoting first from
the Hobbs case, in which murder in the
first degree was defined. State ".
Shawen, 20 S. E. Rep, was next cited,
in which the defendant had been con-
victed and sentenced, and the only err
ror cited was that the Prosecuting At
torney used improper language The
counsel for the prisoner in that case
admitted the verdict was warranted by
the evidence, and yet the Supreme
Court
LAID. DOWN THE LAW
to the attorney for the State, as to i'm
proper statements to the jury. And in
QlSCuSSllS ILLS uldILCl, AdDI. DOFGHtI
quoted from Judge Brannon's opinion
in cOntrovention of Mr.. Towards
claim that the prosecutors were parti-
sans, and were not bound to look after
the interests of the defense, quoting:
Counsel are not bound to convict, but
to do the prisoner justice, as a debt
due to him, and give him a calms delib-
crate and fair trial, even though his
counsel may have transgressed,' etc.
ooh, what a lecture is contained there"
He then reviewed some of the language
used by counsel for the State, and con-
cluded that it was to the prejudice Of
the prisoners. The Captain quoted at
great length from the case under re-
view in support of his argument. He
said Mr.. Towards talk about the de-
ceased being shot in the back was ac-
counted for by the fact that one of the
jurors, Wilson, of Elm Grove, had him
self once been shot in the back. and
that explained the whole matter. If
counsel make material statements, out
side of the evidence. calculated to do
the defendant injury, it should be
deemed an abuse of discretion, and a
cause of reversal" This was quoted
from the Shawen case with much eff
feet, and was applied to the case at
bar, some of the language of counsel
for the State being cited as
FITTING THE DECLARATION
Of the highest Court of the State. The
opinion of Judge Dent, in the same case.
was also quoted from to the effect that
no man not totally depraved should be
denied Imprisonment for life instead of
hanging.
Captain Dovener then read afTidavits by
the defendants, that they had never made
a plea of not guilty, either on November
10TH nor at any other time, and an affi-
davit by s. o. Boyce, Of counsel for de-
Tense. that on November 10th. 1895, with
out consultation with his clients or even
with his co-counseI, he had entered plea
of not guilty. Captain Dovener then
called the attention of the Court to the
claim of the defense that the record of
the Court did not state the truth as TO the
plea, saying: Il am willing TO wait and
the Court may take week to ascertain
if any one will testify that the defend
ants made plea"
The Court-The record of the Court is a
verify, and cannot be altered.
Captain Dovener-I don't wish to place
the Court in a false position-and perhaps
may not be able TO; but what is the use
of writ of n1anGamus. to bring the
Clerk and Judge Of this Court before the