The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-12-05
JUDGE HERYEY.
contlnued FroIn Second Paee.

the crimes charged and contained In
fammatory articles denounclng the
accused, md calculated to arouse pub
lie sentiment against them. the courts
held that this did not show sufficient
cause for change Of venue. State vs..
Edgerton, 100 Iowa. %: Powers VS..
People. % Pac.. 1.12l; State Va. Rhea,
Is Kan, SIC.
| This view OF the law Is well illuStr1-
ted by two cases, one from Pennsylvn-
MIA and the other from Virginia. In
the Pennsylvania case the defendant
! was charged with engaging in d con-
\ spirncy to bride the city councils. The
newspapers contained sensational ac-
counts Of the charges against the de-
PENDANT: and body OF citizens called
| the municipal league" offered large
reward for the punishment Of anyone
who should be convicted Of nn effort to
bride any juror selected to try defend
ants case. Tho court in passing on the
motion for a change Of venue said that,
while the action OF the persons who
constituted the league was lndiscreet In
that It was directed toward the partic-
ular case Of the defendant. and that the
articles in the papers We're sensational,
| NGA AtANHG aLllllAEH llA AAuN blAVh AAAk AAAN
public was 30 prejudlCed as to make a
change OF venue. Warray, Com. VS..
Smith. 1856 Pa. St. 1853.
In the Virginia case the mayor OF the
town where the accused was tried pub
lished card In one Of the papers stat
ing TINT the accused was the man who
had committed the murder and calling
upon the citizens to desist from any at
tempt at lynciIlng, and assuring the
people that defendant would be hung in
thirty days after sentence. The court
held that this publication wan not evil
denCe OF such prejudice as would pre-
vent n fair trial Muscoe vs. Common,
81 Va, AGO.
The NEWSPAPERS publications In the
case before the court are largely MARIA
tives OF the homicide and the events
leading up to It. and some accounts OF
what was said 10 be the past criminal
record OF the defendants. In the main
the accounts are temperate and free
from sensatlonallsm. They are not
inilummatory and contain no appeals
intended to excite popular feeling.
But 1t Is commended that the effect or
these publications was made apparent
by the examination Of the jurors on
their voir dire, and that the answers OF
the Jurors to the questions put TO them
touching their fitness and qualiiica-
ton to sit in this case show that the
public mind was poisoned by these pub
locations. In this view cannot concur.
A reading Of the evidence, on the exam
nation OF the Jurors shows that. while
some few of them were prejudiced, the
great majority Of those who were eX'
| cused did not have any suclT feeling.
The impression left upon my mind from
reading these examinations is that very
many of those summoned desired to
avoid serving on that Jury. But from
those examinations / can gather no
evidence of widespread prejudice or of.
anxiety for the conviction OF the de-
PENDANTS. The application for change
OF venue was properly refused
In my opinion the graVeSt question
raised by the assignments OF error Is
that relating to the argument OF coun-
sci for the state. There Is no question
| in my mind that the attorney for the
prosecution who closed the argument
for the state went beyond the limits
where attorneys should so in the argu-
ment of a case OF this nature. The
| following portions of the closing nrgu-
ment went outside Of the proper limit
and should not have been addressed TO
the Jury:
And in answer to that. l tell you
that before you were employed to de-
| fend these criminRls-ln my Office, APP
piled to by their brother. declined to
appear in their defense. And l tell you
! more than that; there Is not money
enough In oil the world TO ever employ
me to defend the cold-blO6ded murder
err that now sits before the jury"
But II must be remembered that the
remarks quoted were made In answer
| TO a remark Of defendants counsei In
/ terposed while the attorney for the
\ state was speaking: and when the at
| torney for the defendant objected, the
court cautioned the jury not to permit
| this Language to have any Influence
upon them In making UP their verdict.
| That part OF the argument which refer
| red TO the fact that the defendants had
| an appeal. but that II a mistake was
made against the state there was no
remedy, was also objectionable; but 1t
appears from the record to have been
but reinstatement OF what had already
| been said TO the jury by the DEFEND
ants counsel The argument that any
compromise verdict would be disgrace
TO every one Of the twelve men who
signed their names TO II. was improper.
| 1t was not for the attorney for the
/ state to say that any verdict the jury
should return would be dlsgraceful
But this remark only expressed the
opinion of the attorney who made II us
to the duty OF Jurors. and II would be
hard to believe that any juror should
be influenced by It. Again. 1t was I'M
proper for the attorney TO say that
| once before Il became his duty to insist
upon the death penalty, and that he
thought in doing so he was right There
are other portions Of the argument that
nre open to objection, but do not
think It necessary for me to point them
| out.
But the most Objectionable part Of
the argument is that In which the Jury
are told that should they find the de-
PENDANTS not guilty they will go out
and face those who look them In the
face. and ask an explanation
OF that verdict and you VIII
| feel like the soldier who had deserted i'll
the face Of the enemy and came homo
to face his friends and was asked why
he turned his back In the hour OF his
country's need" $3.50 "Thcn no SOL
dler Of his country. in the face Of an
enemy. ever stood In position where
| ne was required to be more brave and
| true to his duty thru ynu do right now.
when you know that II Is .our dUty TO
| find n verdict that would hang ihese
| defendants. and 1t is Il oaestinn OF
whether you are nravc and honest
enough to do It." s'A' Think Of the
man who was on the Johnson md De-
vlnnoy jury, when he meets those who
are ut home and Ions for him; think OF
| those who are dear TO you ana whom
! you want to see grow up IN 4 law
| abiding community; whom you want to
| see grow up in country where law
prevailB:; whom you don't want to
have pointed at ms children Of the man
who WINS on the Jury thnt said Johnson
and DevInney had shot mnn In the
| back and killed him and were found to
he not guilty, but did II In self de-
! Ean.. % . !. MLlL LnnIl do tn NMmE.