The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-02-10
A DRAMATIC SCENE.
Continued From Second Page.

oesause the absent witness appeared
early In the progress OF the case in the
court, long before her testimony was re-
5quired, and remained in attendance as a
witness. and testified fully for the de-
PENDANTS, thereby curing any error
there might have been in overrullng the
motion Tor continuance.
The petition for change OF venue,
being verified. may be considered both
as a petition and affidavit in support
thereof. 1t charges. first, that the
three papers OF the city published
shortly after the homicide exparte and
pre1udlca1 statements against the de-
PENDANTS. and upon the events and cir
cumstanccs OF the homocide, and that
the defendants were guilty Of murder;
second. that the city and the county OF
Ohio have been furthe. prejudiced
against the defendants by the aforesaid
publications; third, that this prejudice
has been further heightened by enemies
of the prisoners and friends OF the de-
ceased; fourth. that the public mind was
unduly and falsely prejudiced against
them; fifth, that as a result n public
subscription was started to raise funds
TO employ and pay counsel to assist In
the prosecution OF the prisoners. and
that quite n sum was thus raised and
counsel employed. They charge one,
August Myers, as aware OF the above
fact and unfriendly 10 the defendants.
Continuing, the Judge said the allega-
ton. regarding the newspapers was
sustained By the papers themselves,
copies Of which were filed bS the de-
Tense. The circulation OF the subscrip-
tion PAPER was also proved. These are
( all the facts that car be admitted as
shown. Then the judge proceeds TO
quote cases sustaining him In declining
to grant new tcial on the grounds
raised by the defense, Concluding his
remarks regarding the desired change
OF venue. the Judge said: The court
now sees no reason to believe that
there was any error on overruliag the
prisoners several motions for change
OF venue, made at the calling. of the
case for trial, and during the empanel-
ling OF the jury.
Supporting the verdict OF murder in
the first degree. the judge said:
1t was earnestly urged by the prison.
ers' counsel, on the argument OF the
motion for o. new trial,tha no valid YER
dict could be found for murder in the
first degree, on the Indictment against
ther., though 1t was In the very form
prescribed In section l. chapter 144, OF
the code. Counsel urged. with seeming
FEASIBILITY, that the omission OF the
word ''premeditatedly" from the pre-.
scribed form Of the code, and followed
in this case. made the indictment one
for that degree of murder which the
law presumes on Il killing being shown.
viz: Murder in the second degree: and
that an indictment for murder in the
first degree would have to follow the
old common Law form, and to allege the
offence to have been done ''feloniously,
wilfully and with malice aforethought,"
or else follow the exact language OF the
statute and allege it to have been a
'w.ilful. deliberate and premediteted
killing" "Feloniously, wilfully and
with malice aforethought' were terms
used to characterize and describe the
murder set out in the old common law
indictment. while in the statutory form
of the Indictment the words "Feonious-
ly. wllfully. maliciouslS', deliberately
and unlawful!S" are used for that pur-
pose. The words feloniously and 'wiful-
ly are common to both forms OF !ndIct-
ment. and are used 10 express the same
neaniniag in each form The phrases
III,
is dropped, and the words ..nlallciously,
deliberately and unlawfully" are used in
lieu thereof in the new form. The diff
ference. then, between the old and new
form OF, indictment Is the difference in
meaning between the phrases malice
aforthought" and deliberately, mali
ciously andf,unirwfully"; or. the differ
ence between doing an unlawful act
with malice aforethought" and "delib-
crately and maliciously" Bowler says
"malIce atorethought" as used de-
scriptive OF murder. means not delibera-
ton or lapse OF time. but design and
purpose. as contrad!sslnguished from
accident or mischance, and that the
word malicious, itself. means doing
wrongful act Intentionally. without just
cause or excuse. Doing an act mali
ciously means the same as doing II with
malice; and doing an ACT mal!ciously
and deliberately must be to do it with
design or purpose. after having deliber-
Rted; /. e., weighed the matter with a
view 10 reaching conclusion. There.
then can be no difference In meaning
between an unlawful act done with
malice afore;houGht and an unlawful
act done deliberately and maliciously.
In each Instance 1t describes an act
done with wicked purpose, after con-
sldcration and reflection.
First Degree Murder.
So far, then. as the phraseo!oay OF
the old indictment and the statutory in
dictment are concerned, they. are lden-
teal In their allegation OF intent. and
differ only as 10 the omission in the
statutory form OF all description o.
manner and means. in and by which the
murder was accomplished
am forced 10 the opinion on reason
that the murder. intended by the form
OF Indictment given In the statute. is
murder in the first degree. because the
very terms employed are ap;!y dcscrip-
tive OF that degree Of horoc!de. rather
than the m!lder form OF homocide. AN
indictment for murder In the first de-
Ercr would not be good, for any degree
OF murder II Tho killing \y1s Sim nlr 81